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THE  LIBRARY 
OF 

[HE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


e  Property 


(  LAW  LIBRARY 


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or  notijy  Lima 


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Books  bd^l^i?!^  to  this 
Librajjn^r^^never  sold, 
cd^^ged^vr  given  away. 


CHICAGO   STAR 

BINBERY 

224  S.  Spring  St.,  L.  »i. 

Tat.  Mutual  AA34 


LAW   LIBRARY 
OF 

LOS  ANGELES  COUNTY 


TI-IE 


Police  Power  of  the 


AND 


DECISIONS    THEREON    AS     ILLUSTRATING':; 
THE   DEVELOPMENT   AND   VALU£..       ''" 
OF  CASE   LAW  vj ;.  - 


BY 

ALFRED  RUSSELL,  LL.  D. 

OF  THE  DETROIT  BAR 

PRES.  MICH.  POLIT.  SCIENCE   ASSO. 


CHICAGO 

CALLAGHAN  &  COMPANY 

1900 


COPYRIGHT   BY 

CALLAGHAN    &    COMPANY 

1900 

T 


TABLE  OF  CONTENTS. 


CHAPTER  I. 
Development  of  the  Law  in  General,  ....      1 

CHAPTER  11. 
GenebaLi  Scope  of  the  Police  Power, 23 

CHAPTER  III. 
The  Police  Power  as  Exercised  in   the   Administration 
OF  Justice  by  the  State,     .        .  ....     37 

CHAPTER  IV. 

Limitations   on   the   Police   Power   Respecting   Freedom 
OF  Contract, 53 

CHAPTER  V. 
The  Constitutional  Obligation  of  Equal  Protection,       .    72 

CHAPTER  VI. 
The    State    Police    Power    as     to    Public    Health   and 
Safety, 85 

CHAPTER  VII. 
The  State  in  Relation  to   Its  Police   Power   over   Cor- 
porations,          101 

CHAPTER  VIII. 
Limitations  on  the  Police  Power  Arising  from   the  Fed- 
eral Power  over  Commerce, 148 

CHAPTER  IX. 
The   Police   Power   Concerning    Property    in    Business, 
with  General  Conclusions, 167 


735317 


TABLE  OF  CASES  CITED. 


Page. 

Adams  Exp.  Co.  vs.  Ohio,  165  U.  S.  194 73 

Addyston  etc.  Co.  vs.  United  States,  175  U.  S.  211 174 

Allan  vs.  Wickoff.  48  N.  J.  Law,  90 81 

Allen  vs.  Newberry,  21  How.  244 157 

Allgeyer  vs.  La.,  165  U.  S.  578 167 

Amer.  Tel.  Co.  vs.  W.  Tel.  Co.,  67  Ala.  32 57 

Anderson  vs.  U.  S.,  171  U.  S.  604 125,  174 

Ash  vs.  People,  11  Mich.  347 94 

Arthur  vs.  Oakes,  63  Fed.  310 168 

Asylum  vs.  New  Orleans,  105  U.  S.  362 132 

Atchison  etc.  R.  R.  vs.  Matthews,  174  U.  S.  96 57,  75 

Atty.  Gen.  vs.  Hunter,  1  Dev.  Eq.  12 50 

Atty.  Gen,  vs.  Looker,  111  Mich.  498 138 

Atty.  Gen.  vs.  0.  C.  R.  R.,  160  Mass.  62 57,  100 

Atty.  Gen.  v.  Lynn  R.  R.,  16  Gray,  242 50 

Atty.  Gen.  vs.  Tudor  Ice  Co.,  104  Mass.  239 50 

Atty.  Gen.  v.  Williams,  55  N.  E.  R.  77 36 

Austin  vs.  Murray,  16  Pick.  126 95 

Baldwin  vs.  State,  21  Tex.  App.  591 36 

Bait.  etc.  R.  R.  v.  Voigt,  176  U.  S.  490 53 

Baker's  Appeal,  109  Pa.  St.  468 137 

Bancroft  vs.  Cambridge,  126  Mass.  458 50 

Bank  vs.  Boston,  125  U.  S.  60 73 

"    Sharp,   6   How.   301 129 

Barbier  vs.  Connolly,  103  U.  S.  37 63,  81,  174 

Barr  vs.  Essex  Trade  Council,  53  N.  J.  Eq.  101,  136 45 

Bartemeyer  vs.  Iowa,  18  Wall.  129 85,  99 

Beck  vs.  R.  R.  Teamster's  Union,  118  Mich.  497 44 

Beer  Co.  vs.  Mass.,  115  Mass.  153 99,  100 

Beer  Co.  vs.  Mass.,  97  U.  S.  25 85,  90,  99,  124,  146 

Bell's  Gap  R.  R.  vs.  Penn.,  134  U.  S.  232 73 

Binghamton  Bridge,   The,   3   Wallace,   51 130 

Birmingham  R.  R.  vs.  Parsons,  101  Ala.  662 57 

Blake  vs.  McClung,  172  U.  S.  239 80 

Blakemore  vs.  B.  &  E.  R.  R.,  7  E.  &  B.  1051 2 

Bloodgood  vs.  M.  &  H.  R.  R.,  18  Wend.  9 144 

Board  etc.  vs.  Macomb,  92  U.  S.  531 131 

Bolln  vs.  Nebraska,  176  U.  S.  83 " 38 

V 


TABLE  OF  CASES  CITED. 


Page. 

Adams  Exp.  Co.  vs.  Ohio,  165  U.  S.  194 73 

Addyston  etc.  Co.  vs.  United  States,  175  U.  S.  211 174 

Allan  vs.  Wickoff,  48  N.  J.  Law,  90 81 

Allen  vs.  Newberry,  21  How.  244 157 

Allgeyer  vs.  La.,  165  U.  S.  578 167 

Amer.  Tel.  Co.  vs.  W.  Tel.  Co.,  67  Ala.  32 57 

Anderson  vs.  U.  S.,  171  U.  S.  604 125,  174 

Ash  vs.  People,  11  Mich.  347 94 

Arthur  vs.  Oakes,  63  Fed.  310 168 

Asylum  vs.  New  Orleans,  105  U.  S.  362 132 

Atchison  etc.  R.  R.  vs.  Matthews,  174  U,  S.  96 57,  75 

Atty.  Gen.  vs.  Hunter,  1  Dev.  Eq.  12 50 

Atty.  Gen.  vs.  Looker,  111  Mich.  498 138 

Atty.  Gen.  vs.  O.  C.  R.  R.,  160  Mass.  62 57,  100 

Atty.  Gen.  v.  Lynn  R.  R.,  16  Gray,  242 50 

Atty.  Gen.  vs.  Tudor  Ice  Co.,  104  Mass.  239 50 

Atty.  Gen.  v.  Williams,  55  N.  E.  R.  77 36 

Austin  vs.  Murray,  16  Pick.  126 95 

Baldwin  vs.  State,  21  Tex.  App.  591 36 

Bait.  etc.  R.  R.  v.  Voigt,  176  U.  S.  490 53 

Baker's  Appeal,  109  Pa.  St.  468 137 

Bancroft  vs.  Cambridge,  126  Mass.  458 50 

Bank  vs.  Boston,  125  U.  S.  60 73 

"    Sharp,   6   How.   301 129 

Barbier  vs.  Connolly,  103  U.  S.  37 63,  81,  174 

Barr  vs.  Essex  Trade  Council,  53  N.  J.  Eq.  101,  136 45 

Bartemeyer  vs.  Iowa,  18  Wall.  129 85,  99 

Beck  vs.  R.  R.  Teamster's  Union,  118  Mich.  497 44 

Beer  Co.  vs.  Mass.,  115  Mass.  153 99,  100 

Beer  Co.  vs.  Mass.,  97  U.  S.  25 85,  90,  99,  124,  146 

Bell's  Gap  R.  R.  vs.  Penn.,  134  U.  S.  232 73 

Binghamton  Bridge,   The,  3   Wallace,  51 130 

Birmingham  R.  R.  vs.  Parsons,  101  Ala.  662 57 

Blake  vs.  McClung,  172  U.  S.  239 80 

Blakemore  vs.  B.  &  E.  R.  R.,  7  E.  &  B.  1051 2 

Bloodgood  vs.  M.  &  H.  R.  R.,  18  Wend.  9 144 

Board  etc.  vs.  Macomb,  92  U.  S.  531 131 

Bolln  vs.  Nebraska,  176  U.  S.  83 ' 38 

V 


yj  TABLE  OF  CASES  CITED. 

Page 

Boston  &  Lu  R.  R.  vs.  S.  &  L.  R.  R.,  2  Gray,  1 134 

Bowman  vs.  Chi.  etc.  R.  R.,  125  U.  S.  508 161 

Boyd  vs.  Alabama,  94  U.  S.  645 101,  124 

Brass  vs.  North  Dakota,  153  U.  S.  391 117,  178 

Brennan  vs.  Titusville,  153  U.  S.  289 74 

Britton  vs.  Atlanta  R.  R.,  88  N.  C.  536 79 

Britton  vs.  Mayor,  21  How.  251 88 

Bronson  vs.  Kinzie,  1  Howard,  311 129 

Brown  vs.  New  Jersey,  175  U.  S.  172 37 

Budd  vs.  New  York,  143  U.  S.  517 HI,  178,  127 

Burrows  vs.  Delta  Transp.  Co.,  106  Mich.  582 93,  154 

Butcher's  Union  Co.  vs.  Cres.  City,  111  U.  S.  744 91,  99,  124 

Butler  vs.  Chambers,  36  Minn.  69 93,  178 

Can.  So.  R.  R.  vs.  Gebhard,  109  U.  S.  5?7 21 

Cardwell  vs.  Bridge  Co.,  113  U.  S.  203 165 

California  vs.  Pac.  R.  R.,  127  U.  S.  1,  41 139 

Camfield  vs.  U.  S.,  167  U.  S.  524 ....518,  523 

Capital  Traction  Co.  vs.  Holt,  174  U.  S.  1 39 

Carew  vs.  Rutherford,  106  Mass.  1 43 

Casey  vs.  Cin.  Union,  12  L.  R.  A.  1S3  and  note 168 

Cavanagh  vs.  Boston,  139  Mass.  426 86 

Central  R.  R.  vs.  Georgia,  92  U.  S.  665 131 

Cent.  Transp.  Co.  vs.  Pullman  Car  Co.,  139  U.  S.  49 127 

Central  Trust  Co.  vs.  Cit.  St.  Ry.,  82  Fed.  1 140 

Cent.  Un.  Telephone  Case,  118  Ind.,  194 179 

Chaddock  vs.  Day,  75  Mich.,  527 95 

Charles  River  Bridge  vs.  Warren  Bridge,  11  Pet.  420 106,  127 

Charlotte  R.  R.  Co.  vs.  Gibbers,  142  U.  S..  386 97,  162 

Chesapeake  Telep.  Co.  vs.  B.  &  0.  Teleg.  Co.,  66  Md.,  474 115 

Chesebrough,  Matter  of,  78  N.  Y.,  332, 86 

Clark  vs.  Kansas  City,  176  U.  S.,  114,  119 73 

Chi.,  B.  &  Q.  R.  R.  vs.  Iowa,  84  U.  S.  155 106 

Chi.,  B.  &  Q.  R.  R.  vs.  Nebraska,  170  U.  S.,  57 181 

Chi.,  B.  &  Q.  R.  R.  vs.  State,  47  Neb.,  549 140 

Chi.,  B.  &  Q.  R.  R.  vs.  Chicago,  166  U.  S.,  226 180 

Chi.,  C.  C.  &  St.  L.  vs.  Backus,  133  Ind.  513 83 

Chi.  etc.  R'y.  vs.  Tompkins,  176  U.  S.,  167 118,  156 

Chicago  Lake  Front  case,  146  U.  S.,  387 123 

Chi.,  M.  &  St.  P.  R.  R.  vs.  Ackley,  94  U.  S.,  179 106 

Chi.,  M.  &  St.  P.  R.  R.  vs.  Solan,  169  U.  S.,  133 169 

Chi.  &  N.  R.  vs.  People,  56  111.  365 144 

Chi.  etc,  Ry.  vs.  Minnesota,  134  U.  S.  418    117,  153 

Chi.  R.  R.  vs.  Moss,  60  Miss.  641 77 

Chi.  etc.  Ry.  vs.  Wellman,  143  U.  S.,  339 118,  156 


TABLE  OF  CASES  CITED.  vii 

Page 

China  Co.  vs.  Brown,  164  Penn.,  449 45 

Chrisman  vs.  Brookhaven,  70  Miss.,  477 81 

Christensen,  Re,  43  Fed.,  213 36 

Cincinnati  vs.  Cameron,  33  Ohio  St.,  336 88 

Citizen  St.  Ry.  vs.  Detroit  Ry.,  171  U.  S.,  48 141 

Cogswell  vs.  N.  Y.  Co.,  103  N.  Y.,  10 90 

Collins  vs.  New  Hampshire,  171  U.  S.,  30 178 

Chin  Yan  Exp.,  60  Cal.,  79 89 

Commonwealth  vs.  Alger,  7  Cush.,  84 27 

Commonwealth  vs.  Bearse,  132  Mass.,  549 27 

Commonwealth  vs.  F.  &  M.  Bank,  22  Pick,  542 142 

Commonwealth  vs.  Franklin,  4  Dallas,  255 46 

Commonwealth  vs.  Hamilton  Co.,  120  Mass.,  283 55 

Commonwealth  vs.  Paul.  170  Pa.  S.,  284 178 

Commonwealth  vs.  Patch,  97  Mass.,  221 89 

Commonwealth  vs.  Penn.  Canal  Co.,  66  Pa.  St.,  41 142 

Commonwealth  vs.  Perry,  155  Mass.,  117 54 

Commonwealth  vs.  Plaisted,  148  Mass.,  375 51 

Cons.  Steel  Co.  vs.  Murray,  80  Fed.,  811 45 

Continental  Co.  vs.  Board,  67  Fed.,  310 168 

Cook  vs.  Moffat,  5  How.,  295 129 

Cooley  vs.  Wardens,  12  How.,  299 159 

Coeur  d'Alene  etc.  Co.  vs.  Miner's  Union,  51  Fed.,  260 168 

County  of  Mobile  vs.  Kimball,  102  U.  S.,  691 148 

Covington  etc.  Co.  vs.  Sandford,  164  U.  S.,  569,  592 83,  188 

Crowley  vs.  Christensen,  137  U.  S.,  86 73,  91 

Crutcher  vs.  Kentucky,  141  U.  S.,  47 o  155 

Culbach,  Ex  parte,  85  Cal.,  274 68 

Cumming  vs.  Bd.  of  Education,  175  U.  S.,  528 79 

Cummings  vs.  Missouri,  4  Wall.,  277 46 

Curran  vs.  Arkansas,  15  How.,  304 130 

Daniel  Ball,  The,  10  Wall.,  537.... 149 

Dent  vs.  West  Virginia,  129  U.  S.,  114 57 

Dartmouth  College  vs.  Woodward,  4  Wheat.  518 104 

Dartmouth  College  vs.  Woodward,  1  N.  H.  Ill 118 

Davenant  and  Hurdis,  Case  of,  11  Rep.,  86 169 

Davidson  vs.  New  Orleans,  96  U.  S.,  97 26 

Davis  vs.  State,  68  Ala.,  58 114 

Davis  vs.  Zimmerman,  98  N.  Y.  Sup.,  489 45 

Debs's  Case,  158  U.  S.,  564 157,  168 

Decker  vs.  R.  Co.,  30  Fed.,  723 165 

Denver  vs.  Bach,  Colorado  (1899) 56 

Detroit  vs.  Corey,  9  Mich.,  165 88 

Detroit  vs.  Plank  Road  Co.,  13  Mich.,  140 142 


^-  TABLE  OF  CASES  CITED. 

Page 
Detroit  etc.  Ry.  vs.  Detroit,  22  U.  S.  App.,  570;  S.  C,  64  Fed. 

628;  60  Fed.;  168;  56  Fed.,  867;  54  Fed.,  1 140,  141 

Diamond  Match  Co.  vs.  Roeber,  106  N.  Y.,  473 71 

Dibbs  vs.  State,  39  Ark.,  353 91 

D.  L.  &  W.  R.  R.  vs.  E.  Orange,  41  N.  J.  Law,  127 97 

Dow  vs.  Beidelman,  125  U.  S.,  680 113 

Downham  vs.  Alexandria  Council,  10  Wall.,  173 99 

Dubuque  &  Pac.  R.  R.  vs.  Litchfield,  13  How.,  66 128 

Eaton  vs.  Kegan,  114  Mass.,  433 57 

Eden  vs.  People,  161  111.,  296 78 

Edwards  vs.  Kearzey,  96  U.  S.,  595 132 

Eilenbecker  vs.  Plymouth  Co.,  134  U.  S.,  31 48,  99 

Elder  vs.  Whitesides,  72  Fed.,  724 45 

Elliott  vs.  Philadelphia,  75  Pa.  St.,  347 90 

Ex  parte  Chin  Yan,  60  Cal.,  79 89 

Ex  parte  Culbach,  85  Cal.,  274 68 

Ex  parte  Wall,  107  U.  S.,  289 36 

Ex  parte  Wilson,  114  U.  S.,  417 38 

Fanning  vs.  Gregoire,  16  How.,  524 164 

Fargo  vs.  Michigan,  121  U.  S.,  230 154 

Farmers'  L.  &  T.  Co,  vs.  Chi.  R.  R.,  27  Fed.,  146 83 

Farmers'  L.  &  T.  Co.,  vs.  Kenning,  17  A.  L.  Reg.,  266 144 

Farmers'  L.  &  T.  Co.,  vs.  Nor.  Pac,  60  Fed.,  803;  63  Fed.,  310, 

44,  45 

F.  &  M.  Bank  vs.  Smith,  6  Wheat.,  131 128 

Farrar  vs.  Close,  L.  R.  4  Q.  B.,  602,  612 45 

Farrington  vs.  Tennessee,  95  U.  S.,  679 120,  131 

Fecheimer  vs.  Louisville,  84  Ky.,  306 79 

Fertilizing  Co.  vs.  Hyde  Park,  97  U.  S.,  659 98,  124,  125 

Fire  Dept.  vs.  Atlas  S.  E.  Co.,  106  N.  Y.,  506 95 

Fire  Dept.  vs.  Chapman,  10  Daly,  327  96 

Fischer  vs.  Boston,  104  Mass.,  87 90 

Fletcher  vs.  Peck,  6  Cranch,  87 105 

Fletcher  vs.  Rylands,  L.  R.,  1  Ex.,  263 90 

Fountain  vs.  Ravenel,  17  How.,  384 139 

Forsyth  vs.  Hamond,  166  U.  S.,  506,  519 119 

Foster  vs.  Kansas,  112  U.  S.,  201 99 

Frankford  R.  R.  Co.  vs.  Phila.,  58  Pa.,  122 146 

Froer  vs.  People,  141  111.,  177 78 

Furman  vs.  Nichol,  8  Wall.,  44 130 

Gale  vs.  Kalamazoo.  23  Mich.,  344 88,  173 

Gas  Light  Co.  vs.  Saginaw,  28  Fed.,  539 88 

Georgia  R.  R.  vs.  Commissioner,  78  Ga.,  694 97 

Georgia  R.  R.  vs.  Smith,  128  U.  S.,  174 139,  162 


TABLE  OF  CASES  CITED.  ix 

Page 

Gibbons  vs.  Ogden,  9  Wheat.,  208 25,  148 

Gibbs  vs.  Baltimore  Gas  Co.,  130  U.  S.,  3% 173 

Gilman  vs.  Phila..  3  Wall.,  713 165 

Gladson  vs.  Minnesota,  166  U.  S.,  427 151 

Gloucester  Ferry  Co.  vs.  Penn.,  14  U.  S.,  196 155,  164 

Godcharles  vs.  Wigeman,   113   Pa.,  431 54,64 

Gordon  vs.  Appeal  Court,  3  How.,  133 129 

Goszler  vs.  Georgetown,  6  Wheat.,  593 88 

Governor  etc.  vs.  Meredith,  4  T.  R.,  790,  794 24,  147 

Grand  Trunk  Ry.  vs.  Backus,  46  Fed.,  216 166 

Great  Northern  R.  R.  case,  161  U.  S.,  646 189 

Greenwood  vs.  Freight  Co.,  105  U.  S.,  13 136 

Gulf  etc.  Ry.  vs.  Ellis,  165  U.  S.,  150 75,  172 

Gut  vs.  State,  9  Wall.,  35 47 

Hall  vs.  DeCuir,  95  U.  S.,  485 151 

Hallinger  vs.  Davis,  146  U.  S.,  314 81 

Hamilton  Gas  Co.  vs  Hamilton,  146  U.  S.,  258 136 

Hancock  vs.  Yaden,  121  Ind.,  366 55 

Hartford  Ins.  Co.  vs.  Chicago  etc.  Ry.,  175  U.  S.,  101 97 

Hartman  vs.  Greenhow,  102  U.  S.,  672 132 

Hawker  vs.  New  York,  170  U.  S.,  189 47 

Hawthorne  vs.  Calef,  2  Wall.,  10 130 

Hays  vs.  Comonwealth,  82  Pa.  St.,  518 137 

Hayes  vs.  Missouri,  120  U.  S.,  366 58,  81 

Henkel  vs.  Detroit,  49  Mich.,  249 94 

Hennington  vs.  Georgia,  163  U.  S.,  299 151 

Hockett  vs.  State,  105  Ind.,  258 115 

Hodgson  vs.  Vermont,  168  U.  S.,  262,  272 38 

Holden  vs.  Hardy,  169  U.  S.,  366 22,  59,  72,  172 

Holyoke  Co.  vs.  Lyman,  15  Wall.,  525 145 

Home  etc,  vs.  Rouse,  8  Wall.,  430 131 

Hooper  vs.  California,  155  U.  S.,  652 143 

Hopkins  vs.  Oxley  Stave  Co.,  83  Fed.,  912 45 

Hopkins  vs.  U.  S.,  171  U.  S.,  578 164,  174 

Howard  vs.  Bugby,  24  How.,  461 130 

Hurlburt  vs.  McCune,  55  Ct,  31 90 

Hurtado  vs.  California,  110  U.  S.,  516 38 

111.  C.  R.  R.  vs.  Chicago,  176  U.  S.,  646 123 

111.  C.  R.  R.  vs.  Illinois,  163  U.  S.,  142 35,  123,  151 

In  re  Sawyer,  124  U.  S.,  200 50 

In  re  Rahrer,  140   U.   S.,  543 152,  159 

Income  Tax  Case,  157  U.  S.,  429 181 

Income  Tax  Case,  158  U.  S.,  601 181 

Indianapolis  vs.  C.  R.  Co.,  83  Fed.,  529 140 


J  TABLE  OF  CASES  CITED. 

Page 

Indianapolis  vs.  Navin,  47  N.  E.  Rep.,  525 140 

Indianapolis  R.  R.  vs.  State,  37  Ind.,  4S9 144 

Insurance  Co.  vs.  Clements,  140  U.  S.,  226 69 

Iowa  Cent.  Ry.  vs.  Iowa,  160  U.  S.,  329 37 

Jacobs,  Matter  of,  98  N.  Y.,  98 177 

Jamieson  vs.  N.  Y.  Gas  Co.,  28  N.  E.  Rep.,  76 87 

Jefferson  Bank  vs.  Skelly,  1  Black,  436 120 

Jeffersonville  Co.  vs.  Hendrick,  41  Ind.,  48 80 

Johnson  vs.  Symington,  43  Cal.,  242 94 

Juniata  Limestone  Co.  vs.  Fagley,  187  Penn.,  193 76 

Kemmler's  case,  136  U.  S.,  436 39 

Kentucky  R.  R.  Tax  case,  115  U.  S.,  321 81 

Kidd  vs.  Pearson,  128  U.  S.,  26 27,  99,  161 

Knatchbull  vs.  Hallatt,  L.  R.,  13  Ch.  Div.,  610 45 

Koshkonong  vs.  Burton,  104  U.  S.,  668 132 

Kring  vs.  Missouri,  107  U.  S.,  221 47 

Kuhn  vs.  Detroit,  70  Mich.,  534 66 

Laclede  etc.  Co.  vs.  Murphy,  170  U.  S.,  78 133 

Lafferty  vs.  C.  &  W.  M.  R.  R.,  71  Mich.,  35 57 

Lake  vs.  Aberdeen,  57  Miss.,  260 89 

Lake  Shore  &  M.  S.  R.  R.  vs.  Ohio,  173  U.  S.,  285 35,  151 

Lake  Shore  &  M.  S.  R.  R.  vs.  Smith,  173  U.  S.,  684 78 

Lawton  vs.  Steele,  152  U.  S.,  133 34 

Leeper  vs.  Texas,  139  U.  S.,  462 37 

Lee  Sing,  Matter  of,  43  Fed.,  359 92 

Leisy  vs.  Hardin,  135  U.  S.,  100,  128 67,  98,  159 

Leloup  vs.  Port  of  Mobile,  127  U.  S.,  640 155 

License  cases,  5  How.,   504 158,  159 

Lindsay  etc.  Co.  vs.  Mullen,  176  U.  S.,  167 164 

Lockhaven  Br.  Co.  vs.  Clinton  Co.,  157  Pa.,  379 58 

Long's  Appeal,  87  Pa.,  114 145 

Lord  vs.  S.  S.  Co.,  102  U.  S.,  541 157 

Lough  vs.  Outerbridge,  143  N.  Y.,  271 44 

Louisiana  vs.  Mayor,  109  U.  S.,  285 122 

Louisiana  vs.  Pillsbury,  105  U.  S.,  295 121 

Louisiana  vs.   Texas,  176  U.  S.,  1 87,  150 

Louisville  vs.  Id.,  92  Ky.,  233 56 

Louisville  &  N.  R.  R.  vs.  Palmer,  109  U.  S.,  244 120 

Louisville  R.  R.  case,  161  U.  S.,  677 189 

Luman  vs.  Ilitchins  Bros.  Co.,  Md„  (Nov.  '99) 56 

McAllister  vs.  State,  72  Md.,  396 178 

McCall  vs.  California,  136  U.  S.,  104 155 

McCracken  vs.  Haywood,  2  How.,  608 129 

Mcllvaine  vs.  Brush,  142  U.  S.,  156 39 


TABLE  OF  CASES  CITED.  xi 

Page 

Magoun  vs.  Illinois  Bank,  170  U.  S.,  283 74 

Maine  vs.  Grand  Trunk  Ry.,  142  U.  S.,  217 155 

Matter  of  Jacobs,  98  N.  Y.,  98 177 

Marx's  case.  99  N.  Y.,  377 177 

Marye  vs.  B.  &  O.  R.  R.,  127  U.  S.,  177 154 

Matter  of  Lee  Sing,  43  Fed.,  359 92 

Mason  Co.  vs.  Nain  Coal  Co.,  87  Ky.,  467 51 

Mason  vs.  Walton,  L.  R.,  4  Q.  B.,  72,  93 14 

Matter  of  Chesebrough,  78  N.  Y.,  332 86 

Maxwell  vs.  Dow.  176  U.  S.,  581 38,  39,  173 

Merchants'  Bank  vs.  Penn.,  167  U.  S.,  463 73 

Miller  vs.  Horton,  152  Mass.,  540 90 

Milhau  vs.  Sharpe,  78  N.  Y.,  332 88 

Millett  vs.  People,  117  111.,  294 54 

Milw.  &  St.  P.  R.  R.  vs.  Minn.,  134  U.  S.,  418 57 

Mink  vs.  Hopeman,  87  111.,  450 50 

Minn.  Co.  vs.  Herrick,  127  U.  S.,  210 81,  82 

Missouri  vs.  Lewis,  101  U.  S.,  22 52,  82 

Missouri  Pac.  R.  R.  vs.  Humes,  115  U.  S.,  512 145 

Missouri  Ry.  vs.  Mackay,  127  U.  S.,  205 81 

Missouri  vs.  McCann,  174  U.  S.,  580 53 

Mobile  &  O.  R.  R.  vs.  Tenn.,  153  U.  S.,  486 120,  133 

Mogul  Steamship  Co.  vs.  McGregor,  L.  R.,  15  Q.  B.,  476 44 

Mohler,  The,  21  Wall.,  235 165 

Monon  Nav.  Co.  vs.  U.  S.,  148  U.  S.,  312 126 

Monopolies,  Case  of,  11  Reports,  85 169 

Moore  vs.  Illinois,  14  How.,  13 46 

Morgan  Co.  vs.  La.  Board,  118  U.  S.,  462 150 

Morgan  Re,  47  L.  R.  A.,  52 65 

Mormon  Church  vs.  U.  S..  136  U.  S.,  1,  57 20,  139 

Morris  vs.  Columbus,  104  Ga..  792 89 

Morse  vs.  Worcester,  139  Mass.,  389 88 

Mugler  vs.  Kansas,  123  U.  S.,  623 85,  90,  99,  175 

Munn  vs.  111.,  94  U.  S.,  113,  142 67,  106,  127,  134,  178 

Murray  vs.  Charleston,  96  U.  S.,  432 122,  131 

Munroe  vs.  Meuei,  35  La.  Ann.,  1192 51 

Murdock  vs.  Walker,  152  Penn.  St.,  595 163 

Nash  vs.  State,  80  Ky.,  545 114 

Nashville  Ry.  Co.  vs.  MacNiel,  82  Fed.,  65,  87 45 

Neagle,  Re,  135  U.  S.,  1 41 

Nelson  vs.  St.  Martin,  111  U.  S.,  716 132 

New  Brunswick  R.  R.,  Re,  1  P.  &  B.,  667 144 

New  Jersey  vs.  Wilson,  7  Cranch.,  164 105 

New  Jersey  vs.  Yard,  95  U.  S.,  104 131 


2^1  TABLE  OF  CASES  CITED. 

Page 

New  Orleans  Gas  Co.  vs.  La.  Light  Co.,  115  U.  S.,  650 99,  132 

New  Orleans  vs.  Houston,  119  U.  S.,  265 99 

New  Orleans  W.  W.  Co.  vs.  Rivers,  115  U.  S.,  674 133 

New  Orleans  W.  W.  Co.  vs.  Sugar  Co.,  125  U.  S.,  118 120 

Newton  vs.  Commissioners,  100  U.  S.,  584 135 

New  York  &  N.  E.  R.  R.  vs.  Bristol,  151  U.  S.,  556 181 

New  York  vs.  Miln,  11  Peters,  102 158 

New  York  Cent.  R.  R.  vs.  People,  12  Hun.,  195 144 

New  York  Cent.  R.  R.  vs.  People,  74  N.  Y.,  342 144 

Norfolk  R.  R.  vs.  Penn..  136  U.  S..  114 155 

Northw.  Mfg.  Co.  vs.  Wayne  Judge,  58  Mich.,  381 178 

Olcott  vs.  Supervisors,  16  Wall.,  678 144 

Old  Colony  Trust  Co.  vs.  Atlanta,  83  Fed.,  39 140 

Old  Colony  Trust  Co.  vs.  Atlanta,  88  Fed.,  859 140 

Oliver  vs.  Washington  Mills,  11  Allen,  268 80 

Omaha  etc.  Ry.  Co.  vs.  Cable  Co.,  30  Fed.,  324 88 

O'Neil  vs.  Vermont,  144  U.  S.,  323 42 

Oregon  etc.  Co.  vs.  Oregonian  Co.,  130  U.  S.,  1 102,  128 

Orient  Ins.  Co.  vs.  Daggs,  172  U.  S.,  557. 74 

Pacific  R.  R.  vs.  McGuire,  20  Wall.,  36 131 

Palmer  vs.  McMahon,  133  U.  S.,  660 73 

Palmer  vs.  State,  39  Ohio  St..  236 178 

Park  vs.  Free  Press  Co.,  72  Mich.,  560 79 

Parker  vs.  Railroad  Co.,  109  Mass.,  506 138 

Passaic  Bridge  cases,  3  Wall.,  782 165 

Passenger  cases,  7  How.,  283 158 

Patapsco  Guano  Co.  vs.  N.  Carolina,  171  U.  S.,  345 159 

Patterson  vs.  Kentucky,  97  U.  S.,  501 35,  91,  179 

Paul  vs.  Virginia,  8  Wall.,  168 143 

Pauley  vs.  Steam  Co.,  131  N.  Y.,  90 57 

Pearson  vs.  Yewdall,  95  U.  S.,  294 38 

Peik  vs.  C.  &  N.  W.  R.  R.,  94  U.  S.,  164 106 

Peirce  vs.  New  Hampshire,  5  How.,  583 26 

Pembina  etc.  Co.  vs.  Penn.,  125  U.  S.,  181 143 

Penn.  Ry.  Co.  vs.  B.  &  N.  Y.  Ry.  Co.,  37  Fed.,  129 165 

Penn.  R.  R.  vs.  Lutheran  Cong.,  53  Pa.,  445 40 

Penn.  R.  R.  vs.  St.  Louis  Co.,  118  U.  S.,  290 102 

People  vs.  A.  &  V.  R.  R.,  24  N.  Y.,  261 145 

People  vs.  Bellet,   99  Mich.,   151 78,  174 

People  vs.  Brooks,  16  Cal.,  11 51 

People  vs.  B.  &  A.  R.  R.,  70  N.  Y.,  569 144 

People  vs.  Chi  etc.  Gas  Co.,  130  111.,  268 173 

People  vs.  Cipperly,  101  N.  Y.,  634 36 

People  vs.  D.  &  C.  R.  R.,  58  N.  Y.,  152 144 


TABLE  OF  CASES  CITED.  xiii 


People  vs.  Gillson,  109  N.  Y.,   389 177 

People  vs.  Hawkins,  157  N.  Y.,  1 183 

People  vs.  Nelson,  133  111.,  565 80 

People  vs.  North  Sugar  Co.,  21  N.  Y.,  582 173 

People  vs.  O'Brien,  111  N.  Y.,  1 141 

People  vs.  Phippen,  70  Mich.,  6 SO 

People  vs.  Plank  Road,  9  Mich.,  285 142 

People  vs.  Rochester  etc.  R.  R.,  14  Hun,  373 144 

People  vs.  Smith.  108  Mich..  531 177 

People  vs.  Standard  Oil  Co.,  49  Ohio  St.,  137 173 

People  vs  Walsh,  6  N.  Y.  S.  R.,  554 116,  177 

Perkins  vs.  St.  L.  R.  R.,  103  Mo.,  25 57 

Pervear  vs.  Comonwealth,  5  Wall.,  475 48 

Petit  vs.  Minn.,  U.  S..  S.  C.  1900 78 

Phalon  vs.  Virginia,  8  How.,  163 98 

Philadelphia  vs.  W.  U.  Tel.  Co.,  40  Fed.,  615 163 

Philadelphia  Fire  Ass'n.  vs.  New  York,  119  U.  S.,110 82 

Philadelphia  S.  S.  Co.  vs.  Penn.,  122  U.  S.,  326 154 

Pickard  vs.  Pullman  Co.,  117  U.  S.,  34 154 

Pierson  vs.  Portland,  69  Me.,  278 79 

Pingree  vs.  Mich.  Cent.  R.  R.,  118  Mich.,  314 Ill,  133 

Piscataqua  Bridge  case,  7  N.  H.,  69 135 

Pittsburgh  R.  R.  vs.  Backus,  154  U.  S.,  421 42 

Plessy  vs.  Ferguson,  163  U.  S.,  537 81,  151 

Plumley  vs.  Mass.,  153  U.  S.,  461 176 

Pound  vs.  Turck,  95  U.  S.,  459 164 

Powell  vs.  Penn.,  114  Pa.   St..  265 90,  175 

Powell  vs.  Penn..  127  U.  S..  670 90,  175 

Prigg  vs.  Penn.,  16  Pet..  539,  628 25,  158 

Printing  Co.  vs.  Sampson,  L.  R.,  19  Eq.  Cas.,  462 53 

Prosser  vs.  N.  P.  R.  R.,  152  U.  S.,  64 166 

Pullman  Car  Co.  vs.  Penn.,  141  U.  S.,  18 154 

Radcliffe  vs.  Mayor  etc.,  4  N.  Y.,  195 90 

Rahrer,  In  re,  140  U.  S.,  543 152,  159 

Railroad  Commission  Cases,  116  U.  S.,  307 97 

Railroad  Com'rs.  vs.  Portland  R.  R..  63  Me.,  269 97 

Railroad  Co.  vs.  Alabama,  128  U.  S.,  96 150 

Railroad  Co.  vs.  Husan,  95  U.  S.,  465 149 

Railroad  Co.  vs.  Jacksonville,  67  111.,  37 96 

Railroad  Co.  vs.  Lockwood,  17  Wallace,  357 53 

Railroad  Co.  vs.  Maryland,  21  Wall.  456 101,  145 

Railway  vs.  Id.,  30  Ohio  St.  604 113 

Ratterman  vs.  W.  U.  Tel.  Co.,  127  U.  S.  411 155 

Reagan  vs.  Farmers'  L.  &  T.  Co.,  154  U.  S.  362 109,  153 


xiv  TABLE  OF  CASES  CITED. 

Page 

Re  Morgan,  47  L.  R.  A.  52  65 

Re  Neagle,  135  U.  S.  1 41 

Re  Christensen,  43  Fed.  213 36 

Rex  vs.  Cambridge  Tailors,  8  Mod.  11 43 

Rex  vs.  Severn  &  Wye.  R.  R.,  2  B.  &  A.  646 144 

Re  N.  B.  etc.  R.  R.,  1  P.  &  B.  667 144 

Reynolds  vs.  U.  S.,  98  U.  S.  145  48 

Reynolds  vs.  Everett.  144  N.  Y.  189 168 

Rhea  vs.  Newport  Co.,  50  Fed.  16 166 

Rideout  vs.  Knox,  148  Mass.  368 27 

Roberts  vs.  Boston,  5  Cush.  198 81 

Robertson  vs.  Baldwin,  165  U.  S.  275 65 

Roby  vs.   Smith,   131  Ind.  342 83 

Rothermel  vs.  Meyerle,  136  Pa.  250 79 

Royal  vs.  Virginia,  116  U.  S.  592 122 

Ruggles  vs.  People,  91  111.  256 113 

St.  Louis  vs.  Hill, Mo.  (S.  C,  '93)  59 

St.  Louis  R.  R.  vs.  Williams,  49  Ark.  492 78 

San  Ant.  R.  R.  vs.  Wilson,  4  Tex.  Civ.  App.  323 57 

Sands  vs.  Manistee  Co.,  133  U.  S.  288 164 

Sanders  vs.  Ins.  Co.,  44  N.  H.  238 101 

Sanders  Re,  52  Fed.  802 163 

San  Diego  Land  Co.  vs.  Natl.  City,  174  U.  S.  739 156 

Sawyer  vs.  Davis,  136  Mass.  239 114 

Sawyer,  In  re.  124  U.  S.  200 50 

Schollenberg  vs.  Penn.,  171  U.  S.  1 178 

Scott  vs.  Donald,  165  U.  S.  58 161 

Seifert  vs.  Brooklyn,  101  N.  Y.,  136 88 

Shaver  vs.  Penn.  Co.,  71  Fed.  931 69 

Sherry  vs.  Perkins,  147  Mass.  212 44 

Shoe  Co.  vs.  Saxey,  131  Mo.  212 45 

Sinking  Fund  Cases,  99  U.  S.  747 112,  119 

Six  Carpenters'  case,  8  Coke  147 57 

Slaughter  House  cases,  16  Wall.  36 27,  54,  72,  98,  167,  169 

Slidell  vs.  Grandjean,  111  U.  S.  412 128 

Sloan  vs.  Pacific  R.  R.,  61  Mo.  24 97 

Smith  vs.  Rochester,  76  N.  Y.  506 90  , 

Smith  vs.  Alabama,  124  U.  S.  465,  478 53 

Smyth  vs.  Ames,  169  U.  S.  466 109,  153 

Society  etc.  vs.  New  Haven,  8  Wheat.  464 129 

Soon  Hing  vs.  Crowley,  113  U.  S.  763 63 

South  Ala.  R.  R.  vs.  Morris,  64  Ala.  193 77 

So.  Cal.  Ry.  Co.  vs.  Rutherford,  62  Fed.  796 45 

Southern  R.  R.  vs.  Gebhard,  109  U.  S.  527 21 


TABLE  OF  CASES  CITED.  xy 

Spies  vs.  Illinois,  123  U.  S.  131 39 

Springhead  vs.  Riley,  L.  R.,  6  Eq.  551 43 

Spring  Val.  W.  Wks.  vs.  Schottler,  110  U.  S.  347 112 

State  vs.  Addington,  77  Mo.  110 178 

State  vs.  Am.  Powder  Co.,  50  N.  J.  Law,  75 93 

State  vs.  Ashbrook,  55  S.  W.  Rep.  642 82 

State  vs.  Broadbent,  Md.  ('99)  56 

State  vs.  Bates,  14  Utah,  293 39 

State  vs.  Chi.  &  St.  P.  Ry.,  2  Int.  Com.  R.  519 149 

State  vs.  Coal  Co.,  33  W.  Va.  188 55,  68 

State  vs.  Goodwill,  33  W.  Va.  179 54 

State  vs.  Greer,  78  Mo.  188 137 

State  vs.  Green,  112  Ind.,  462  57 

State  vs.  Glidden,  53  Conn.  46 168 

State  vs.  H.  &  N.  H.  R.  R.,  39  Conn.  538 144 

State  vs.  Hinman,  65  N.  H.  103 57,  80 

State  vs.  Jackson,  N.  H.   ('98) 73 

State  vs.  Julow,  31  S.  W,  Rep.  781 68 

State  vs.  Laverack,  34  N.  J.  Law.  201 94 

State  vs.  Loomis,  115  Mo.,  307   56,  75 

State  vs.  N.  E.  R.  R.,  9  Richardson,  247 144 

State  vs.  Standard  Oil  Co.,  49  Ohio  St.  137 173 

State  vs.  Wagener,  Minn.   ('99)  56 

State  vs.  Wheeler,  44  N.  J.  Law,  88 93 

State  vs.  White,  9  N.  E.  Rep.  867 50 

State  Bank  vs.  Knoop,  16  How.  369  130 

State  Freight  Cases.  15  Wall.   232 148,  154 

State  Railroad  Tax  cases,  92  U.  S.  575 73 

State  Tax  on  R.  R.  Gross  Receipts,  15  Wall.  284 154 

Sternberger  vs.  Railway,  2  Int.  Com.  R.  426 149 

Stevedore's  Assn.  vs.  Walsh,  2  Daly  (N.  Y.),  1 43 

Stockton  vs.  B.  &  N.  Y.  R.  R.,  32  Fed.  9 157 

Stockton  Laundry  case,  26  Fed.  611 92 

Stoudinger  vs.  Newark,  1  Stewart  (N.  J.)  Eq.  446 86 

Stone  vs.  Miss..  101  U.  S.  814 98,  99,  124 

Stone  vs.  Wis.,  94  U.  S.  181 106,  125 

Strauder  vs.  W.  Va.,  100  U.  S.  303 40 

Swartow  vs.  Com.,  74  Pa.  131 38 

Sullivan  vs.  Hovey,  82  Mich.  451 52 

Talcott  vs.  Pine  Grove,  1  Flippin,  144 145 

Telegraph  Co.  vs.  Texas,  105  U.  S.  460 154 

Telegraph  Co.  vs.  Alabama,  132  U.  S.  472 155 

Tennessee  vs.  Davis,  100  U.  S.  300 41 

Texas  Pac.  Ry.  vs.  Int.  St.  Com.,  162  U.  S.  192,  218 17 


xvi  TABLE  OF  CASES  CITED. 

Page 

Texas  VS.  White,  7  Wall.  725 32 

Texas  vs.  Davis,  100  U.  S.  300 33 

Thatcher  vs.  Maine  Cent.  R.  R.,  85  Me.  502 56 

Thomas  vs.  Cin.  Ry.  Co.,  62  Fed.  803 45 

Thomas  vs.  Railroad,  101  U.  S.  71 102,  135 

Thompson  vs.  Utah,  170  U.  S.  343   39 

Tiernan  vs.  Rinker,  102  U.  S.  123 99 

Tinsley  vs.  Anderson,  171  U.  S.  101 81 

Toledo  etc.  R.  R.  vs.  Tenn.  R.  R.,  54  Fed.  730 43 

Topeka  vs.  Boutwell,  53  Ks.  20 51 

Transp.  Co.  vs.  Wheeling,  99  U.  S.  273 154 

Twelfth  St.  Market  Co.  vs.  R.  R.  Co.,  142  Pa.  St,  80 94 

Tyroler's  case,  48  N.  Y.  S.  1093 181 

Union  Canal  Co.  vs.  Gilfillin,  93  Penn.  95 101,  145 

United  States  vs.  Bellingham  Co.,  176  U.  S.  211 166 

United  States,  vs.  Debs,  64  Fed.  724   45 

United  States  vs.  DeWitt,  9  Wall.   41 87 

United  States  vs.  Dougherty,  101  Fed.  439 179 

United  States  vs.  E.  C.  Knight,  Col.,  56  U.  S.  1 179 

United  States  vs.  Elliott,  62  Fed.  801 45 

United  States  vs.  New  Orleans,  98  U.  S.  381 140 

United  States  vs.  Perkins,  163  U.  S.  625,  628 74 

United  States  vs.  Workingmen's  Council,  54  Fed.  994 45 

University  vs.  People,  99  U.  S.  309  132 

Usill  vs.  Hules,  3  C.  P.  D.  325 14 

Van  Etten  vs.  Eaton,  19  Mich.  187 103 

Von  Hoffman  vs.  Quincy,  4  Wall.  535 130 

Van  Swartow  vs.  Cora.,  24  Pa.  131 38 

Van  Zant  vs.  Waddell,  2  Yerger,  260 76 

Vegelhahn  vs.  Guntner,  167  Mass.  92 44 

Vetaloro  vs.  Perkins,  101  Fed.  393 82 

Vick  vs.  Rochester,  46  Hun.  607 86 

Virginia  Coupon  cases,  114  U.  S.  269 132 

Wabash  R.  R.  vs.  Illinois,  118  U.  S.  557 148,  188 

Wadsworth  vs.  U.  P.  R.  R.,  18  Colo.  600 57 

Walker  vs.  Sauvinet,  92  U.  S.  90 37 

Walla  Walla  City  vs.  W.  Water  Co.,  172  U.  S.  1 133 

Wall,  Ex  parte,  107  U.  S.  289 38 

Wallston  vs.  Nevin,  128  U.  S.  578 80 

Wallworth  vs.  Holt,  4  Mylne  &  Craig,  635 45 

Walsh  vs.  Bowen,  103  Ind.  257 88 

Ward  vs.  Farwell,  97  111.  693 142 

Warren  vs.  Sohn,  112  Ind.  213 81 

Washington  Univ.  vs.  Rouse,  8  Wall.  442 121 


TABLE  OF  CASES  CITED.  ^VU 

Page 

Waterbury  vs.  Newton,  50  N.  J.  L.,  534 178 

Webster  Telephone  case,  17  Neb.  126 114 

Welton  vs.  Missouri,  91  U.  S.,  282 148 

Welsh  vs.  Stowell,  2  Doug.  (Mich.),  332 88,     96 

West  River  Bridge  Co.  vs.  Dix,  6  How.  507 139,    147 

Western  U.  Tel.  Co.  vs.  Alabama,  132  U.  S.  472 155 

Western  U.  Tel.  Co,  vs.  Indiana,  165  U.  S.  304 73 

Western  U.  Tel.  Co.  vs.  Mass.,  125  U.  S.  530 154 

Western  U.  Tel.  Co.  vs.  New  York,   38   Fed.    552 163 

Western  U.  Tel.  Co.  vs.  Pendleton,  122  U.  S.  347 152 

Wheeling  Bridge  case,  18  How.  421 165 

White  vs.  Hart,  13  Wall.  646 131 

Wilder  vs.  C.  &  W.  R.  R.,  70  Mich.  382 77 

Willamette,  etc.  Co.  vs.  Hatch,  125  U.  S.  1 165 

Williams  vs.  Miss.,  170  U,  S.  213,  225 84 

Willy  vs.  Mulledy,  78  N.  Y.  310 96 

Wilmington  R.  R.  vs.  Reid,  13  Wall.  264 131 

Wilson  vs.  Blackbird  C.  M.  Co.,  2  Pet.  245 150,  166 

Wilson  Ex  parte,  114  U.  S.  417 38 

Winchester  vs.  Turnpike  Co.,  33  L.  R.  A.  177 Ill 

Winona  &  St.  P.  R,  R.  vs.  Blake,  94  U.  S.  180 106 

Woodruff  vs.  Miss.,  162  U.  S.  291 68 

Woodruff  vs.  Trapnall,  10  How.  190 129 

Woolston  vs.  Zouch,  2  Burrows,  1147 3 

Wright  vs.  Nagle,  101  U.  S.  793 120 

Wunderle  vs.  Id.,  144  111.  40 56 

Wurtz  vs.  Hoagland,  114  U.  S.  606 81 

Wynehamer  vs.  People,  13  N.  Y.  457 40,    176 

Yarbrough's  case,  110  U.  S.  651 20 

Year  Book,  3,  5,  18  Edward  II 7 

Year  Book,  46,  48  Edward  III 7 

Year  Book,  21    Edward    IV.... 7 

Year  Book,  36    Edvvard    VI • 7 

Year  Book,  7  Henry  IV 7 

Yick  Wo  vs.  Hopkins,  118  U.  S.  356 36,  63,  67,  84,  92 


THE  POLICE  POWER  OF  THE  STATE 


DECISIONS  THEREON 

AS  ILLUSTRATING  THE  DEVELOPMENT  AND   VALUE 
OF  CASE  LAW. 


CHAPTER    I. 

DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

The  making  of  our  law  is,  and  always  has  been, 
progressive.  Civilization,  that  is,  human  improve- 
ment, advances;  and  law  is  a  great  part  of  civiliza- 
tion. The  jurisprudence  of  one  age  is  history  in  a 
later.  Our  law  was  originally  called  the  customary 
law.  It  sprang  from  the  sense  of  justice  and  the 
power  of  reasoning  implanted  in  man  by  his  Maker. 
Who  set  forth  reason  and  justice,  in  their  application 
to  the  affairs  of  men?  This  has  been  done  by  the 
judges  from  the  earliest  time  in  Britain,  down  to  the 
present  time  in  America.  It  has  been  done  when  de- 
ciding particular  facts  in  actual  controversies.  The 
genius  of  English-speaking  people  is  intensely  prac- 
tical. They  have  always  treated  law  as  a  business 
and  not  as  a  theory.  They  have  been  chary  of  estab- 
lishing rules  of  conduct  in  advance,  and  have  pre- 
ferred that  such  rules  should  be  unfolded  from  actual 

1 


2  DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

facts,  which  necessarily  create  the  law  to  he  ex- 
pounded. The  judges  have,  indeed,  in  reaching  the 
disposition  of  the  case,  not  infrequently  given  rea- 
sons and  explanations,  and  stated  principles;  but 
this  has  been  done  in  the  way  of  opening  out  the 
legal  relation  of  the  facts,  and  not  in  the  way  ot 
declaring  general  rules.  Nor  have  the  English 
judges,  parliament,  or  people  ever  favored  codet- 
making. 

Let  us  illustrate  by  a  modern  case  in  the  Queen's 
Bench,  where  the  judgment  was  by  a  gifted  and  emi- 
nent judge.  Sir  John  Taylor  Coleridge,  in  1858. 
Blakemore's  administrator  brought  an  action  for  an 
injury  sustained  by  Blakemore  which  caused  his 
death.  The  railroad  company  had  stipulated  that 
consignees  of  goods  should  unload  them  at  the  sta- 
tion, and  be  allowed  the  free  use  of  a  crane,  which 
was  unsafe  as  the  company  knew;  and  the  crane 
broke,  killing  the  decedent,  who  was  helping  unload. 
The  company's  defense  was,  that  the  use  was  gratuit- 
ous, but  the  judge  held  that  there  was  a  liability  for 
themischief  resulting  from  the  company's  knowledge 
of  the  unsafe  condition  of  the  article  lent.  The  judge 
could  find  no  authority  in  the  English  reports,  or 
treatises,  but  he  found  the  principle  in  the  Eoman 
law,  and  said:  "This  is  so  consonant  to  reason  and 
justice  that  it  cannot  but  be  a  part  of  our  law."^ 

A  century  earlier,  a  question  arose  as  to  the  con- 

1  Blakemore  v.  B.  &  E.  R.  R.,  8  E.  &  B.  1051. 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.  3 

struction,  force  and  effect,  of  a  power,  presented  in  a 
case  on  a  special  verdict  in  ejectment;  and  the  great 
Mansfield  said,  in  the  King's  Bench,  after  referring 
to  several  precedents:  "But  there  are  no  precedents 
which  can  stand  in  the  way  of  our  determining  this 
case  liberally,  equitably,  and  according  to  the  inten- 
tion of  the  parties."^  In  the  year  1756,  referring  to 
the  cases  of  that  period,  Mr.  Burrows,  the  reporter, 
said:  "The  authority  of  right  judgments,  on  right 
principles,  given  unanimously,  by  judges  who  add 
weight  and  dignity  to  the  highest  offices,  instead  of 
deriving  any  from  them,  is  so  great,  that  the  point 
determined  becomes  a  rule  forever." 

Lord  Esher,  on  November  15,  1897,  in  replying  to 
the  address  of  the  Attorney-General  on  the  occasion 
of  Lord  Esher's  retiring  from  the  great  oflflce  of  Mas- 
ter of  the  Rolls,  said: 

"The  duty  of  the  judge  is  to  find  out  what  is  the 
rule  which  people  of  candor  and  honor  and  fairness 
in  the  position  of  the  two  parties  would  apply  in  re- 
spect to  the  matter  in  hand.  That  is  the  common 
law  of  England,  and  there  is  no  other  law.  It  is  not 
only  the  common  law,  but  if  we  go  to  equity  it  is  the 
same  thing.  The  law  of  England  is  not  a  science;  it 
is  a  practical  application  of  the  rules  of  right  and' 
wrong  to  the  particular  case  before  the  court.  And 
the  canon  of  law  is,  that  that  rule  should  be  adopted 
and  applied  to  the  case  which  people  of  honor  and 

aWoolston  v.  Zouch,  2  Burr.  1147. 


4      DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

candor  and  fairness  in  such  a  transaction  would  ap- 
ply to  each  other.  Now,  if  that  be  so,  if  any  supposed 
rule  of  law  is  put  forward  which  would  prevent  the 
rule  of  right  being  applied,  the  supposed  rule  of  law 
must  be  wrong;  and  if  it  ever  be  alleged  that  the 
law  will  prevent  the  truth  being  established  and 
oblige  the  court  to  say  that  that  is  not  true  which 
is  true, — if  ever  any  such  rule  of  law  is  attempted  to 
be  put  forward,  it  must  be  wrong,  and  I  have  always 
said  so.  Now,  what  the  rules  of  right  and  wrong  in 
the  particular  case  are,  must  be  determined  in  each 
particular  case;  but  nobody  can  have  read  the  re- 
ports of  decisions  of  great  judges  from  the  earliest 
times  in  England  without  trying  to  find  in  those  re- 
ports, the  mode  and  manner  in  which  those  judges 
have  stated  the  rule  of  conduct  of  the  court,  and  that 
is  what  is  called  authority.  But  no  decision, — at 
least  in  my  opinion, — of  any  judge  as  to  the  rule  of 
law,  other  than  in  an  Act  of  Parliament,  can  compel 
any  court  now  to  say  that  they  were  prevented  from 
deciding  that  to  be  true  which  was  in  reality  not 
true;  there  is  no  such  thing  in  the  law  as  a  rule 
which  says  that  the  court  shall  determine  that  to  be 
true  which  the  court  believes  and  knows  to  be  un- 
true." 

Britain  was  a  province  of  the  Roman  Empire  for 
nearly  five  hundred  years.  Then  followed  the  Saxon 
invasion.  Many  centuries  after  the  Saxons  came 
the  Normans.  The  development  of  our  law  began 
during  the  long  period  of  the  Roman  occupation, 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL,  5 

which  left  an  indelible  impress.  During  that  time 
the  refined  jurisprudence  of  Rome  attained  its  fullest 
development;  and  it  is  now  generally  considered  that 
from  that  jurisprudence  we  derive  the  better  prin- 
ciples of  our  law.  It  has  been  said  that  the  history 
of  our  law  from  the  time  of  the  Saxons  is  a  history 
of  the  struggles  between  the  principles  of  reason, 
represented  by  the  Roman  law,  and  the  principles 
of  custom,  represented  by  the  usages  of  the  bar- 
barians. For  example,  the  principle  that  what  long 
use  sanctions  becomes  law  without  being  written,  is 
of  Roman  origin.^  So,  the  principle  that  a  man  may 
not  repossess  himself  of  his  property  by  force,  but 
must  use  process  of  law.*  Trial  by  jury  itself,  gen- 
erally thought  to  be  the  one  legal  institution  of 
purely  British  origin,  really  was  the  product  of  the 
Roman  system  of  trial,  according  to  Montesquieu,'' 
and  according  to  Phillimore.®  The  Roman  jurors, 
called  judices,  answered  the  questions  of  fact,  and 
the  Roman  praetors,  corresponding  to  our  judges, 
answered  the  questions  of  law,  just  as  in  our  still  ex- 
isting system  in  England  and  America.  The  law 
concerning  municipalities  may  be  traced  to  a  dis- 
tinctly Roman  origin. 

Judicial  legislation,  for  such  in  reality  is  the  de- 
ciding of  cases  by  judges,  began  to  be  known  as 
early  as  the  age  of  Alfred.     Such  legislation  was 


3  Justinian,  lib.  i,  tit.  ii,  s.  59.        c  Sp.  of  L.,  xi,  c.  18. 

4  Lib.  iv,  tit.  15.  e  int.  to  Rom.  L.,  17,  19. 


Q  DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

then  a  branch  of  executive  authority;  and  that 
amiable  prince,  it  is  related  in  the  Mirror  of  Justice, 
hanged  forty-four  judges  in  one  year  for  rendering 
judgments  not  according  to  his  notions  of  reason  and 
justice.  It  was  not,  however,  until  the  commence- 
ment of  the  issue  of  annual  reports  called  the  Yean 
Books,  that  judicial  legislation  took  on  what  is  sub- 
stantially its  existing  form.  This  was  the  time  ex- 
tending from  Edward  II.  to  Henry  VIII.  It  may  be 
said  that  the  era  of  our  modern  law  began  with  the 
reign  of  his  daughter  Elizabeth, — that  reign  so  fruit- 
ful of  marvels,  in  arms,  navigation,  literature  and 
law.  But  to  understand  the  post-Elizabethan  law,  it 
is  necessary  to  study  the  previous  development.  The 
general  distinction  between  the  periods  is,  that  in 
the  former  the  ownership  of  land  was  the  passport 
and  patent  of  respect,  and  the  principal  subject  of 
litigation,  while  the  latter  is  marked  by  the  rise  and 
predominance  of  the  commercial  spirit;  and  now: 
vast  wealth  is  in  the  form  of  personal  property, 
which  is  chiejfly  litigated  about,  and  a  piece  of  land 
is  transferred  with  as  little  formality  as  a  horse. 

The  books  of  the  law  began  to  be  in  English,  and 
to  be  printed,  in  the  fifteenth  century,  and  the  de- 
velopment of  our  law  was  then  greatly  facilitated. 
In  the  Year  Books  began  the  great  improvement  of 
putting  spoken  law  into  writing.  The  reporters  were 
employed  and  paid  by  the  crown,  to  take  notes  in 
the  courts,  and  publish  them  annually.  Very  much 
of  our  received  law^  is  found  in  these  publications. 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.  7 

For  example,  the  law  that  the  sheriff  cannot  breaJi 
the  outer  door  of  a  dwelling  to  levy  an  execution/ 
The  point  of  the  Six  Carpenters'  Case,^  that  one  who 
abuses  an  authority  in  law,  is  to  be  deemed  a  tres- 
passer from  the  beginning,  was  determined  a  hun- 
dred and  thirty  years  before.^  The  law  that  ratifica- 
tion is  equivalent  to  previous  authority,  is  found  very 
early.^^  The  maxim,  res  inter  alios  acta  non  nocet." 
Modus  et  conventio  vincunt  legem.*  ^  Novo  casu 
novum  remedium.*^  These  maxims  the  judges 
adopted  from  the  Roman  law,  and  made  them  Eng- 
lish law,  because  they  reflect  reason  and  justice.  Ac- 
tion of  account  for  money  received  on  sale  of  plain- 
tiff's goods.**  Action  on  the  case  against  a  farrier 
for  laming  a  horse.*^  Action  on  the  case  against  a 
surgeon  for  malpractice.*^ 

Statements  of  principles  when  made  by  the  judges, 
have  been  in  reality,  statements  of  what  should  gov- 
ern the  particular  facts,  and  should  always  be  read 
with  reference  to  those  facts.  Such  general  state- 
ments are  frequently  found  not  to  govern  other  facts. 

We  have  now  seen  that  the  method  of  the  develop- 
ment of  our  law  has  been,  first  and  foremost,  by  ju- 
dicial declaration,  which  has  always  been  treated  as 
the  equivalent  of  legislation,  and  has,  in  reality,  been 

TYear  B.,  18  Edw.  IV.,  fol.  19.  12  Year  B.,  5  Edw.  II,  161. 

s  8  Coke,  147.  13  Year  B.,  18  Edw.  II,  400. 

»  Year  B.,  21  Edw.  IV,  fol.  19,  i*  Year  B.,  46  Edw.  Ill,  fol.  3. 

pt.  22.  15  Year   B.,   36   Edw.    VI,   fol. 

10  Year  B.,  7  Hen.  IV,  fol.  35.  19. 

11  Year  B.,  3  Edw.  II,  53.  le  48  Edw.  Ill,  fol.  6. 


8      DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

legislation  itself.  A  second  method  of  developing 
pur  law  has  been  by  juristic  writings.  That  is  to  say, 
studious  lawyers  have  examined  the  decisions  of  the 
judges,  extending  over  centuries, — and  a  century  is 
a  short  time  in  the  growth  of  our  law, — and  have  ex- 
tracted, classified  and  arranged  the  principles  con- 
ceived to  underlie  the  disposition  of  the  actual  cases; 
and  have  commended  some  and  condemned  others; 
and  have  accordingly  contributed  somewhat  to  ren- 
der our  law  a  science,  as  well  as  an  art.  The  com- 
posers of  these  juristic  writings  have  also  reflected 
the  national  English  trait  of  not  theorizing  about 
law,  and  have  in  general,  merely  stated  law  which 
had  been  developed  and  enforced  in  actual  contro- 
versies. These  treatises  have  supplemented  the  ad- 
judications, by  pointing  out  and  explaining  grounds 
and  analogies  as  might  have  been  done  by  the  au- 
thors of  the  adjudications.  The  reflex  influence  of 
the  law-writers  upon  the  judge  and  also  upon  the 
legislator  has  been  great  and  beneficial,  so  much  so, 
indeed,  that  many  of  the  authors  of  our  text-books, 
from  Bracton  to  Cooley,  may  well  be  termed  develop- 
ers of  our  law.  They  develop  the  law  by  teaching 
those  who  have  the  power  to  declare  and  to  enact. 
The  field  of  usefulness  of  such  writers  is  already  very- 
wide,  but  is  capable  of  great  expansion.  Indeed,  we 
must  rely  mainly  on  individual  labor  for  any  great 
improvement  in  the  law. 

A  third  method  of  the  developing  of  our  law  is, 
and  has  always  been,  professional  opinion.    The  legal 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.      9 

body,  from  the  earliest  ages,  has  been  the  depository 
of  law-learning,  and  has  been  so  recognized  by  the 
mass  of  the  people  of  every  condition;  and  from  it 
the  bench  is  constantly  recruited.  Their  advice,  in 
every  local  community,  has  shaped  actual  transac- 
tions, and  disposed  of  them.  Often  the  whole  busi- 
ness life  of  a  particular  locality  has  formed  itself 
upon  it.  When  affairs  arising  under  such  circum- 
stances have  come  into  litigation,  judicial  judgment 
has  almost  certainly  followed  the  prior  professional 
view.  Under  all  circumstances,  the  reasoning,  ar- 
guments, analogies,  and  illustrations,  supplied  by 
the  opposing  counsel  before  the  judges,  have  con- 
tributed as  much,  or  more,  to  the  ultimate  result,  as 
the  reflections,  examinations  and  conferences  of  the 
judges  themselves.  Counsel  have,  indeed,  better  op- 
portunities for  studying  the  particular  controversy 
than  the  judges  can  possibly  have,  hearing  the  facts 
as  they  do  for  the  first  time  in  the  hurry  and  press 
of  business.  So  that  one  chief  care  of  counsel  is  to 
see  that  the  judges  possess  themselves  of  the  facts 
accurately  and  thoroughly.  It  is  certainly  true  that 
English-speaking  people  have  always  valued,  and 
supported,  an  upright,  watchful  and  intelligent  bar; 
and  have  relied  upon  them  to  advise  the  people,  the 
legislature  and  the  courts.  The  courts  uniformly  do 
lean,  and  must  lean,  upon  the  bar;  and  the  memor- 
able case  of  parliament  applying  to  John  Selden  for 
advice  was  by  no  means  a  single  instance.  In  gen- 
eral, the  bar  has  shown  itself  worthy  of  the  confi- 


10 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 


dence  reposed  in  it.  To  so  great  a  degree  is  the  bar 
responsible  for  the  decisions  of  the  courts,  that  Jer- 
emy Bentham,  in  his  diatribes  against  what  he  calls 
judge-made  law,  includes  the  bar  as  associate  mak- 
ers, and  uses  the  derisive  phrase  "Judge  &  Co."  to 
designate  the  makers  of  judiciary  law. 

By  far  the  greater  part  of  our  law  has  been  and  is 
developed  in  the  three  ways  already  pointed  out,  by 
the  judges,  the  jurists  and  the  bar;  and  this  greater 
part  of  our  law  has  been  developed  after  men  have 
acted,  and  in  determining  the  effect  of  their  actions. 
But  there  is  a  fourth  method  of  developing  our  law 
beforehand;  that  is,  the  enactment  of  the  Legisla- 
ture, setting  out  general  rules  of  conduct,  to  be  ob- 
served subsequently.  This  method  is  generally 
meant  when  lawmaking  is  spoken  of,  although  it  is, 
in  reality,  the  least  important  method  of  lawmaking. 
There  is  a  series  of  great  historical  statutes  passed  in 
the  mother  country,  from  century  to  century,  to  cure 
supposed  defects,  as  occasion  has  arisen.  And  this 
process  of  statutory  development  from  time  to  time, 
is  also  illustrative  of  the  marked  national  trait  of  the 
people  of  Britain,  heretofore  referred  to,  of  looking 
at  things  in  a  practical,  business  way,  and  avoiding 
theoretical  action.  A  single  statute  can  be  viewed  by 
a  legislative  body  independently,  and  on  its  own 
merits,  and  therefore,  intelligently  and  justly;  while 
a  mass  of  legislation,  called  a  code,  can  only  be  cre- 
ated by  a  commission  and  adopted  bodily  by  the 
Legislature.    Such  a  mass,  called  a  code,  will  reflect 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.     H 

the  theories  of  the  framers,  and  does  not  spring  from 
the  judgment  of  the  representatives  of  the  people, 
exercised  upon  special  instances  and  needs,  calling 
for  early  relief.  The  latter  method  of  development 
has  always  been,  and  is  now,  the  English  method. 
Where  single  statutes,  upon  the  same  or  related  sub- 
jects, have  accumulated,  they  have  been  re-written, 
reduced,  and  consolidated  into  one  statute.  The  tone 
of  development  by  statute  has  always  been  hostile 
to  any  attempt  at  a  codification  of  the  w^hole  mass  of 
the  law,  and  parliament  has  confined  itself,  as  above 
stated,  to  the  process  of  digesting  enactments  relat- 
ing to  one  subject,  as  occasion  has  demanded.  An 
early  example  of  this  is  the  Statute  of  Laborers  and 
'Artiflcers,^^  which  recites  that  there  stand  in  force 
a  great  number  of  acts  which,  partly  for  their  imper- 
fection and  contrariety,  and  partly  for  the  variety, 
and  number  of  them,  cannot  be  put  in  due  execution, 
so  the  substance  shall  be  digested  and  put  in  one 
sole  law  and  statute.  This  statute  was  enacted  un- 
der the  police  power. 

In  1592,  Bacon  unsuccessfully  proposed,  in  the 
Commons,  a  plan  to  amend,  condense  and  consoli- 
date the  whole  body  of  English  law.  In  the  time  of 
the  commonwealth  a  commission  was  created  com- 
posed of  learned  men,  and  members  of  the  House 
of  Commons,  including  the  great  names  of  Cromwell 
and  Hale,  which  sat  for  five  years;  and,  after  the 

17  5  Eliz.  c.  4. 


13     DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

restoration,  there  was  another  commission,  made  up 
of  fifty-one  members;  and,  in  1828  and  1844,  similar 
movements  were  made;  but  little  or  nothing  of  im- 
portance came  from  any  of  them.  We  may  justly  in- 
fer that  the  striking  indisposition  of  the  people  of 
the  mother  country  to  adopt  anything  not  confirmed 
by  the  development  of  centuries  and  approved  by 
actual  use  in  the  affairs  of  men,  lay  at  the  bottom 
of  all  these  attempts  at  a  sort  of  codification.  It  is 
highly  probable  that  this  indisposition  will  continue. 
It  is  the  product  of  eight  or  ten  centuries. 

But  the  habit  of  alteration  and  correction  by  in- 
dividual statutes,  and  the  habit  of  consolidating 
such  statutes  upon  related  subjects,  has  been  kept 
up  from  Elizabeth  to  Victoria,  and  has  been  followed 
in  America.  A  modern  English  example  is  found 
in  the  Eailway  and  Canal  Traffic  Act  of  1852,  regu- 
lating a  portion  of  the  law  concerning  carriers.  This 
act,  moreover,  illustrates  in  a  remarkable  manner 
the  predilection  of  the  English  people  for  the  system 
of  making  law  by  judges,  according  to  the  require- 
ments of  the  particular  facts.  The  act  provides  that 
notices  and  conditions,  made  by  common  carriers, 
shall  be  void,  unless  the  individual  judge,  at  the 
trial,  shall  deem  the  notice  just  and  reasonable.  In 
other  words,  this  statute  of  the  last  half  of  the  nine- 
teenth century,  expressly  authorizes  the  judges  tol 
do  just  what  they  have  practically  been  doing  from 
a  time  anterior  to  the  Year  Books;  namely,  to  decide 
the  controversy  according  to  reason   and  justice. 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.     13 

This  statute  is  not  a  set  of  rigid  and  inflexible  rules, 
incapableof  adaptation  to  new  combinations  of  facts. 
It  is  impossible  to  formulate  an}'  rule  or  principle 
which  will  be  of  universal  application.  Another 
modern  instance  of  development  by  digesting  ap- 
pears in  the  English  act  of  18S2,  as  to  bills  and  notes. 
This  statute  codifies  the  technical  and  statutory, 
rules  on  the  subject,  but  makes  no  attempt  to  cover 
the  whole  law  relating  to  it.  On  the  contrary,  it  de- 
clares that  the  existing  law  shall  remain,  when  not 
inconsistent  with  the  digested  statute. 

This  topic  of  commercial  paper  furnishes  a  con- 
spicuous example  of  how  our  law  has  been  de- 
veloped. The  merchants  first  established  such  cus- 
toms as  the  convenience  of  their  business  required. 
Mansfield,  the  head  of  the  court  of  the  King's  Bench, 
took  up  these  customs  and  made  them  the  law  of 
the  land  by  his  decisions.  Then  parliament  passed 
statutes,  from  time  to  time,  either  declaring  or  alter- 
ing the  judiciary  law,  and  finally  enacted  the  con- 
solidated law  of  1882,  covering  a  considerable  part 
of  the  subject. 

Evolution,  and  judicial  legislation  according  to 
the  changing  activities  of  business,  and  not  legisla- 
tive regulation,  according  to  some  theory  of  what 
the  law  ought  to  be,  has  been  the  method  of  the  de- 
veloping of  our  law  from  the  Roman  occupation  of 
Britain  until  now.  The  needs  and  opinions  of  men 
vary  insensibly  from  one  age  to  another.  These 
alterations  are  known  by  the  judges  and  shared  by 


14  DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

them.  And  so  the  law  which  they  develop  progres.ses 
by  imperceptible  degrees.  Sharp  and  sudden 
changes  by  statutes  have  always  been  disfavored. 
It  is  said  by  Lord  Chief  Justice  A.  J.  E.  Cockburn/^ 
as  cited  by  Lord  Chief  Justice  Coleridge,^®  that 
"whatever  disadvantages  attach  to  a  system  of  un- 
written law, — and  of  these  we  are  fully  sensible, — 
it  has  at  least  the  advantage  that  its  elasticity  en- 
able those  who  administer  it  to  adapt  it  to  the  vary- 
ing conditions  of  society,  and  to  the  requirements 
and  habits  of  the  age  in  which  we  live;  so  as  to 
avoid  the  inconveniences  and  injustice  which  arise 
when  the  law  is  no  longer  in  harmony  with  the 
wants,  usages  and  interests  of  the  generation  to 
which  it  is  immediately  applied." 

This  method  of  the  gradual  developing  and  ad- 
vancement of  the  law,  according  to  the  character- 
istics of  the  age,  and  the  justice  of  the  case,  by  a 
trained  and  instructed  body  of  men,  set  apart  for 
the  purpose,  has  always  been  preferred  by  the  Eng- 
lish people  to  codemaking  by  the  sort  of  men  who 
composed  the  Legislature,  or  by  commissions.  We 
have  in*  our  own  country,  at  the  present  time,  a  gen- 
eral distrust  of  our  State  and  National  legislatures, 
and  this  is  sometimes  wondered  at.  But  it  is  an  in- 
herited distrust.  It  comes  from  our  English  ances- 
tors.   Blackstone's  book  shows  that  he  felt  distrust 


18  Mason  v.  Walton,  L.  R.  48,       i9  Usill  v.  Hules,   3   C.  P.   D. 
4  Q.  B.  73,  93.  1868.  325. 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.  15 

of  legislation.  The  negligences,  imperfections  and 
mistakes  of  the  narrow  nobles  and  country  squires, 
often  brutal  and  ignorant,  who  made  up  the  early 
parliaments,  and  of  the  commercial  and  laboring 
men  introduced  into  the  later  parliaments,  and  into 
our  State  legislatures,  have  produced  laws  far  less 
satisfactory  to  the  people  than  the  judicial  legisla- 
tion of  the  bench.  Nothing  more  useless,  grotesque 
or  harmful  has  been  exhibited  in  our  newest  States 
in  the  way  of  legislation  than  we  see  in  the  English 
records.  And  we  have  only  to  read  Sir  Erskine 
May's  Constitutional  History  to  see  that  no  legisla- 
tive jobbers^  in  America  has  approached  that  of 
England.  While  in  both  countries  judicial  lawmak- 
ing has  generally  been  free  from  the  vice  of  igno- 
rance and  free  from  the  vice  of  corruption.  In  both 
countries,  the  people  have  always  shown,  and  now 
show,  as  much  confidence  in  the  lawmaking  of  their 
judges  as  they  do  distrust  towards  the  lawmaking 
of  their  legislators. 

As  the  interpretation  and  application  of  a  statute, 
of  necessity,  falls  to  the  judges,  they  often  experi- 
ence the  greatest  difficulty  in  ascertaining  the  real 
intention  of  the  legislature.  Take,  for  example,  the 
famous  Statute  of  Frauds,  re-enacted  in  every  one 
of  our  States;  thousands  of  decisions,  costing  mill- 
ions of  dollars,  have  been  expended  in  attempts  to 
construe  it.  And  yet  that  statute  was  drawn  by  as 
great  a  lawyer  as  would  ever  be  employed  in  com- 


16     DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

posing  a  code.  Many  statutes  have  been  found  to  be 
actually  incapable  of  administration. 

Austin,  professor  of  jurisprudence  in  the  Univer- 
sity of  London,  in  his  celebrated  lectures,  expresses 
conflicting  opinions  respecting  statutory  and  judic- 
iary law  compared.  He  says  that  he  does  not  dis- 
approve of  the  latter;  that  society  could  not  possibly 
have  gone  on  without  legislation  by  the  judge,  to 
make  up  for  the  negligence  and  incapacity  of  the 
avowed  legislator;  and  that  that  portion  of  the  law 
made  by  judges  has  been  far  better  made  than  that 
part  which  consists  of  statutes  enacted  by  the  leg- 
islature.^*^ But  in  another  place  he  says  that  it  can 
never  be  known  whether  a  judiciary  rule  is  valid  law, 
because  uncertainty  is  of  the  essence  of  judiciary  law, 
but  that  it  is  not  of  the  essence  of  statutory  law, 
which  when  well  constructed  and  generally  ap- 
proved is  "absolutely  certain."^^ 

On  the  contrary,  the  meaning  of  any  statute  can 
never  be  known  until  it  has  been  applied  by  the 
judiciary.  Bishop  Hoadly  said,  in  his  pamphlet  on 
the  Bangorian  controversy:  "Nay,  whoever  hath  an 
absolute  authority  to  interpret  any  written  or 
spoken  laws,  he  it  is  who  is  truly  the  lawgiver,  to  all 
intents  and  purposes ;  and  not  the  persons  who  first 
wrote  or  spoke  them."  Out  of  different  possible  con- 
structions, a  court  may  select  and  apply  the  one  that 

20  I  Lect.  Lond.  Ed.  1869,  224.        21  n  Lect.  678. 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.  I7 

best  comports  with  the  genius  of  our  institutionst, 
says  the  Federal  Supreme  Court.^^ 

Parliament  was  always  jealous  of  the  construc- 
tions placed  upon  statutes  by  the  judges,  and  on  one 
occasion  added  the  following  clause  to  a  statute: 
"And  be  it  finally  enacted,  that  the  present  act,  audi 
every  clause,  article  and  sentence  comprised  in  the 
same,  shall  be  taken  and  accepted  according  to  the 
plain  words  and  sentences  therein  contained,  and 
shall  not  be  interpreted,  nor  expounded,  by  color  of 
any  pretense  or  cause,  or  by  any  subtle  arguments, 
or  inventions,  or  reasons,  to  the  hindrance,  disturb- 
ance or  derogation  of  this  act,  or  any  part  thereof, 
etc/'23 

Austin  and  Bentham  are  both  examples  of  what 
absurdities  a  mere  closet  thinker,  not  experienced 
in  the  ways  of  men  in  actual  controversies  in  the 
courts,  may  utter.  Bentham  was  a  gentleman  of 
property  and  leisure,  a  bencher  of  Lincoln's  Inn,  and, 
no  doubt,  was  one  of  the  greatest  minds  of  the  eigh- 
teenth century;  and  he  originated  some  important 
reforms,  such  as  making  parties  witnesses.  But  his 
style  was  unattractive  and  his  temper  narrow.  Bom 
in  London  in  the  first  half  of  the  eighteenth  century, 
and  having  listened  to  the  delivery  of  Blackstone's 
lectures,  which  he  says  were  generally  attended  by 
from  thirty  to  fifty  persons,  he  yet  lived  to  see  the 

22  Texas  &  Pac.  R.  R.  v.  Int.       23  stat.  28,  Hen.  VIII,  c.  7,  § 
St.    Com.    Com.,    162   U.   S.    197,    28. 
218. 


18     DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

publication  of  Kent's  Commentaries  in  America,  He 
derided  Blackstone,  and  wa«  angered  to  read  tlie 
eiilogiiims  of  Kent  on  the  common  law,  and  said  he 
would  be  glad  to  see  in  Kent  the  smallest  spark  of 
regard  for  the  ends  of  justice.^^  This  was  in  1827, 
and  yet  Bentham  himself  had  -wTitten  and  published 
in  1817  that  all  the  law  libraries  of  all  the  countries 
of  Europe  would  not  furnish  "a  collection  of  cases 
equal  in  variety,  in  amplitude,  in  clearness  of  state- 
ment,— in  a  word,  in  all  parts  taken  together,  in  in- 
structiveness, — to  that  which  may  be  seen  in  the 
English  Reports  of  Adjudged  Cases,  adding  the 
abridgments  and  treatises  by  which  a  sort  of  order, 
such  as  it  is,  is  given  to  their  contents."^^ 

Bentham  was  one  of  those  persons,  happily  few, 
who  advocate  the  abolition  of  all  existing  law,  writ- 
ten or  unwritten,  and  the  substitution  of  one  enact- 
ment, called  a  code,  which  should  include  it  all,  and, 
make  it  comprehensible  by  every  citizen.  The  in- 
vestigation and  presentation  of  particular  facts,  and 
reasoning  about  them,  involves  labor  and  thought, 
and  acquaintance  with  principles  and  cases,  gives  a 
virile  training,  and  lays  under  contribution  the  best 
powers  of  the  intellect;  but  these  persons  vainly  im- 
agine that  such  labor  and  thought  and  knowledge 
may  be  rendered  unnecessary  by  a  code. 

In  response  to  an  inquiry  from  parliament,  in  1844, 


24  X  Works,  Edinb.,  1843,  560.       25  ly  Works,  Papers  on  Codif., 

461. 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.  19 

the  entire  body  of  superior  judges  of  England,  men 
of  great  moral  worth,  intellectual  culture,  breadth 
of  view,  and  long  experience,  joined  in  recommend- 
ing that  no  attempt  at  codification  should  be  made; 
and  their  view  undoubtedly  represented  the  English 
bar  and  the  English  people. 

iWe  are  now  prepared  to  sum  up  our  methods  of 
legal  development.  The  chief  mode  of  evolution  of 
our  system  of  law  consists  in  its  development  by 
judicial  decisions,  according  to  the  requirements  of 
human  change  and  improvement,  and  according  to 
the  reason  and  justice  of  the  particular  case.  These 
decisions  are  more  or  less  cogent  evidence  of  what 
the  law  actually  is,  according  to  the  eminence  of  the 
court  and  the  thoroughness  of  argument  of  counsel 
concerned. 

Another  mode  is  our  method  of  law  reform,  in  the 
way  of  development,  which  is  to  remedy  defects  by 
single  statutes  as  occasion  may  arise;  and  also,  from 
time  to  time,  to  digest  judiciary  law,  on  single  or  re- 
lated topics  in  one  statute. 

A  third  mode  is  the  American  invention  of  writ- 
ten constitutions,  binding  not  only  the  judges,  but 
also  the  legislature.  This  may  be  called  the  culmi- 
nation of  development. 

Our  law  is  still  further  in  course  of  development 
by  the  operation  of  the  doctrine  that  the  judges  are 
clothed  with  the  power  and  bound  by  the  duty  of 
determining  that  a  statute  repugnant  to  the  constitu- 
tion, as  they  interpret  it,  is  no  law. 


30     DEVELOPMENT  OF  THE  LAW  IN  GENERAL. 

Judiciary  law  is  not,  and  never  can  be,  superseded 
by  statutory  and  constitutional  enactments,  for  the 
reason  that,  although  these  are  controlling,  their 
construction  can  never  be  certainly  known  until  they 
bave  been  applied  by  the  judiciary  in  particular! 
cases,  according  to  the  established  maxim  that,  "A' 
thing  may  be  within  the  terms  and  not  within  the 
intention,  or  within  the  intention  and  not  within  the 
terms."  This  maxim  is  older  than  Bacon's  Abridg- 
ment; and  it  was  declared  by  Justice  Miller  that 
upon  this  maxim  all  the  implied  powers  of  the  Fed- 
eral government  rest.^^  The  interpretation  may  be 
rigid  or  elastic,  according  to  the  demands  of  an  ad- 
vanced civilization,  according  to  the  progress  of  arts 
and  sciences,  and  according  to  the  principles  of  jus- 
tice and  reason  deemed  to  be  applicable. 

Thus  judicial  decisions  necessarily  both  precede 
and  follow  statutes  and  constitutions,  and  it  is  in 
the  decisions  that  we  find  the  best  illustrations  of 
the  gradual  development  of  the  law. 

Historical  investigation  concerning  the  evolution 
of  our  law  during  the  long  period  of  the  transition 
■from  the  feudal  to  the  federal  system  will  establish 
the  foregoing. 

The  transcendent  power  of  parliament  and  of  the 
Crown  devolved  upon  the  people  of  the  States  at 
the  time  of  the  American  Revolution,  as  stated  by 
the  Supreme  Oourt.^''^    Among  these  powers  was  the 

20  Yarbrough's  Case,  110  U.  S.       27  Mormon  Church  v.  U.  S.,  136 
651.  U.  S.  1. 


DEVELOPMENT  OF  THE  LAW  IN  GENERAL.  21 

power  to  absolve  from  liability  to  meet  contract  en- 
gagements, say  the  Supreme  Court.^^  But  the  peo- 
ple of  the  States,  in  making  the  different  constitu- 
tions of  the  States,  have  not  conferred  such  tran- 
scendent powers  upon  the  State  legislatures.  They 
have  delegated  the  law-making  power  to  an  endless 
series  of  State  legislatures,  except  such  powers  as 
they  have  delegated  to  the  Federal  government,  sub- 
ject to  the  limitations  of  the  State  constitutions  and 
also  to  Section  10,  Article  1,  of  the  Federal  consti- 
tution, forbidding  the  States  to  pass  any  law  im- 
pairing the  obligation  of  contracts,  and  also  subject, 
since  the  year  1868,  to  the  limitations  of  the  14th 
amendment  to  the  Federal  constitution,  prohibiting 
to  the  States  the  making  of  any  law  which  shall' 
abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States,  or  the  depriving  of  any  person  of 
life,  liberty  or  property  without  due  process  of  law, 
or  the  denying  to  any  person  the  equal  protection  of 
the  laws.  By  the  10th  amendment  to  the  Federal 
constitution,  powers  not  delegated  by  it  to  the 
United  States,  or  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  or  to  the  people. 

The  Supreme  Court  declares  that:  "The  Four- 
teenth Amendment,  which  was  finally  adopted  July 
28,  1868,  largely  expanded  the  power  of  the  Federal 
courts  and  Congress,  and  for  the  first  time  author- 
ized the  former  to  declare  invalid  all  laws  and  judi- 

28  Can.  So.  R.  R.  v.  Gebhard,  109  U.  S.  527. 


22     DEVELOPMENT  OP  THE  LAW  IN  GENERAL. 

cial  decisions  of  the  States  abridging  the  rights  of 
citizens  or  denying  them  the  benefit  of  due  process 
pf  law."29 

From  the  fact  that  the  exercise  and  operation  of 
the  police  power  of  the  State  is  limited  and  con- 
trolled by  the  Federal  constitution,  as  well  as  by  the 
State  constitution,  as  just  remarked,  we  have  to  con- 
sider very  largely  the  historical  development  of  the 
law  concerning  the  police  power  in  the  decisions  of 
the  Federal  arbiter,  the  Supreme  Court  of  the  United 
States. 

29  Holden  V.  Hardy,  169  U.  S.  366,  382. 


CHAPTER    II. 

GENERAL  SCOPE  OF  THE  POLICE  POWER. 

The  view  of  legal  development  presented  in  the 
first  chapter  will  appear  well-founded  by  a  consid- 
eration of  the  growth  and  evolution  of  what,  at  the 
present  day,  is  termed  the  police  power.  The  use  of 
this  phrase,  in  its  existing  acceptation,  is  essentially 
modern,  and  its  enlarged  meaning  is  the  result  of 
conditions  arising  in  the  States  of  America,  regu- 
lated by  our  statutes  and  passed  upon  by  our  tribu- 
nals. 

There  is  no  trace  in  the  books,  before  the  early 
part  of  this  century,  of  the  use  of  the  expression 
police  power  as  substantially  equivalent  to  the 
power  of  legislation. 

The  Greek  word  polls,  meaning  state  or  common- 
wealth,^ is  the  origin  of  the  word  police,  which  was 
not  used  till  near  the  close  of  the  eighteenth  cen- 
tury. Dr.  Johnson  regarded  it  as  a  French  word, 
used  in  England,  and  signifying  "the  regulation  and 
government  of  a  city  or  country,  so  far  as  regards 
the  inhabitants."^ 

Blackstone  treated  this  power  briefly,  and  merely 
as  a  head,  or  subdivision,  of  criminal  justice,  com- 
prising such  offenses  as  especially  affect  public  so- 

1  Plato,  Republic,  422  E.  -  Johns.  Diet.,  sub  voce. 

23 


24  GENERAL  SCOPE  OF  THE  POLICE   POWER. 

ciety;  and  such  is  the  popular  conception  of  the 
power  even  now.  Bentham  says  the  word  police  is 
derived  from  the  Greek  and  was  imported  into  Eng- 
land from  France,  and  that  the  idea  belonging  to  it 
is  too  multifarious  to  be  susceptible  of  any  defini- 
tion; but  he  also  classes  the  term  as  a  division  of 
criminal  justice,  yet  includes  in  it  regulations 
against  selling  poisons,  for  shutting  inns  at  a  certain 
hour  at  night,  for  exercising  the  professions  of  law 
and  medicine  only  after  passing  certain  examina- 
tions, as  well  as  systems  of  espionage.  In  the  time 
of  Kent,  the  subject  had  not  begun  to  assume  its 
present  proportions,  and  he  devotes  little  attention 
to  it.  In  the  early  English  Keports,  there  are  in- 
stances of  the  exercise  of  the  police  power,  as  now 
interpreted,  but  that  phrase  is  not  employed.  For 
example,  the  judges  of  the  King's  Bench  speak  of  in- 
juries sustained  by  individuals  for  the  accommoda- 
tion or  protection  of  the  public,  under  acts  of  parlia- 
ment, such  as  relate  to  laying  out  turnpikes,  pulling 
down  houses  for  public  defense,  etc.,  according  to 
the  maxim,  Salus  populi  suprema  lex.^  The  tenn 
appears  to  have  been  first  used  in  the  United  States 
Supreme  Court  Reports  by  Mr.  Justice  Story,  who 
says  that  the  police  power  belongs  to  the  States  in 
virtue  of  their  general  sovereignty  and  has  never 
been  conceded  to  the  United  States,  and  that  it  ex- 
tends over  all  subjects  within  their  territorial  limits, 
and  includes  the  power  of  deportation  of  undesirable 

8  Gov,  et  al.  v.  Meredith.  4  T.   R.  790. 


GENERAL  SCOPE  OF  THE  POLICE  POWER.  25 

persons.*  The  word  police  was  also  employed  by 
Marshall.^  Before  the  last  half  of  the  present 
century,  neither  the  legislatures  nor  the  courts  were 
much  occupied  with  considering  the  police  power. 
But  the  spirit  of  what  we  call  individualism,  which 
pervaded  the  early  history  of  our  States,  has  given 
way  before  the  increasing  desire  to  look  to  govern- 
ment for  aid,  and  the  police  power  has  been  seized 
upon  by  our  newly-composed  legislatures,  elected 
from  the  working  classes,  and  statutes  have  been 
passed  interfering  with  many  of  the  ordinary  con- 
cerns of  life,  hitherto  not  meddled  with  by  legisla- 
tion. At  the  same  time  constitutional  guaranties 
have  either  been  enlarged  or  newly  created.  It  has 
therefore  followed  that  judicial  decisions  touching 
the  exercise  of  the  police  power  have  increased  in 
number  enormously,  and  a  body  of  modern  law  has 
been  developed  by  the  application  of  ancient  prin- 
ciples to  new  conditions  of  society. 

Let  us  now  inquire  what  the  police  power  is  as  now 
understood  in  the  present  state  of  the  development 
of  the  law  on  the  subject. 

It  in  general  covers  the  conduct  of  individuals  and 
the  use  of  property,  and  includes  the  regulation  of 
these  subjects  by  the  State.  Definition  is  always 
perilous  in  the  law,  and  no  definition  of  our  topic 
need  now  be  attempted.  What  the  police  power  is, 
and  what  its  extent  and  limitations  are,  can  only  be 

4  Prigg  V.  Penn.,  16  Pet.  539,        s  Gibbons  v.  Ogden,  9  Wheat, 

1842.  208,  1824. 


26  GENERAL  SCOPE  OF  THE  POLICE  POWER. 

ascertained  by  the  gradual  processes  of  judicial  in- 
clusion and  exclusion  as  the  cases  presented  for  de- 
cision require,  with  the  reasoning  upon  which  such 
decisions  may  be  found,  following  the  weighty  obser- 
vation of  Mr.  Justice  Miller,  when  declining  to  define 
what  is  deprivation  of  property  without  due  process 
of  law.®  Long  prior  Chief  Justice  Taney  attempted 
the  definition  of  the  police  powers  of  the  State  and 
said  that  they  are  nothing  more  or  less  than  the  pow- 
ers of  government  inherent  In  their  sovereignty,  and 
include  laws  concerning  quarantine,  punishment  of 
offenses,  establishment  of  courts,  recording  of  in- 
struments, and  the  regulation  of  commerce  within 
the  limits  of  the  State.^  The  question  which  elicited 
this  definition  was,  whether  a  State  law  prohibiting 
the  sale  without  license,  of  liquor  imported  from  an- 
other State,  was  repugnant  to  the  constitution  of 
the  United  States,  on  the  ground  that  the  Federal 
grant  of  power  to  regulate  commerce  is  in  itself 
a  prohibition  of  that  power  to  the  State,  although 
undeniably  within  the  police  powers  of  the  State. 

The  celebrated  chief  justice  of  Massachusetts  de- 
fines the  police  power  as  the  power  vested  in  the 
legislature  to  make  such  laws  as  they  shall  judge  to 
be  for  the  good  of  the  commonwealth  and  its  sub- 
jects; adding,  however,  that  it  is  much  easier  to  re- 
alize the  existence  and  sources  of  this  power  than  to 
mark  its  boundaries  or  prescribe  limits  to  its  exer- 

6  Davidson  v.  N.  O.,  96  U.  S.  7  Peirce  v.  N.  H.,  5  How.  583, 
97,  1877.  1846. 


GENERAL  SCOPE  OF  THE  POLICE  POWER.  27 

cise.^  The  question  in  this  case  was  as  to  the  estab- 
lishment of  a  wharf-line.  Shaw's  definition  is  broad 
enough  to  include  the  whole  body  of  legislation,  and 
corresponds  with  the  meaning  of  the  word  police  ety- 
mologicallj  considered.  Mr.  Justice  Lamar,  of  the 
Supreme  Court  of  the  United  States,  declared  that 
the  police  power  of  the  State  is  as  broad  and  plenary 
as  the  taxing  power,  and  that  the  property  within 
the  State  is  subject  to  the  operations  of  the  former 
so  long  as  it  is  within  the  regulating  restrictions  of 
the  latter.^  Mr.  Justice  Devens  said  that  the  legis- 
lature is  largely  the  judge  of  its  own  power  with 
respect  to  the  police  power,  but,  that  if  rights  of  prop- 
erty are  invaded  under  the  pretence  of  a  police  regu- 
lation, the  court  must  interfere.^ °  Mr.  Justice  Miller 
said  in  the  famous  Slaughter  House  cases,^^  that  the 
police  power,  from  its  very  nature,  is  incapable  of 
any  very  exact  definition,  as  it  concerns  the  security 
of  social  order  and  the  life  and  health  of  the  citizen, 
comfort  of  existence  in  dense  populations,  and  the 
enjoyment  of  private  and  social  life,  and  the  bene- 
ficial use  of  property. 

The  Supreme  Court  has  also  said  that  the  police 
power  is  not  subject  to  any  definite  limitations,  but 
is  co-extensive  with  necessities  of  the  case  and  the 
safeguard  of  the  public  interest.* ^ 

8  Alger's  Case,  7  Cush.  84.  n  16  Wallace,  36. 

3  Kidd  V.  Pearson,  128  U.  S.  12  Canfleld.  v.  U.  S.,  167  U.  S. 

26.  324,  citing  Ridcout  v.  Knox,  148 

10  Com.   V.  Bearse,   132   Mass.  Mass.  368. 
549. 


2S  GENERAL  SCOPE  OF  THE  POLICE  POWER. 

The  range  of  legislation  with  respect  to  subjects  of 
governmental  control  in  the  exercise  of  the  police 
power  has  been  much  extended  within  the  last  quar- 
ter of  a  century.  The  reason  of  this  is  obvious. 
Modern  social  life  has  called  into  being  many  agen- 
cies not  heretofore  existing  and  the  tendency  of  legis- 
lation is  more  and  more  in  the  direction  of  paternal- 
ism, so-called,  in  aid  of  particular  interests  or  special 
/classes  of  inhabitants.  Out  of  this  enlarged  legisla- 
tion much  litigation  has  been  produced  and  the  duty 
of  judges  has  been  to  reconcile,  if  possible,  new  cases 
of  the  exercise  of  this  power  with  fundamental  prin- 
ciples, and  to  see  that  governmental  control  over  per- 
sons and  property  should  not  be  carried  beyond  con- 
stitutional limitations. 

In  addition  to  the  administration  of  civil  and  crim- 
inal justice,  the  State  police  power,  at  the  present 
day,  is  exercised  in  the  prevention  of  diseases,  regu- 
lations as  to  medicines,  adulteration  of  food,  and  san- 
itary measures  in  dwellings.  We  also  have  regula- 
tions respecting  the  sale  of  intoxicating  liquors,  in- 
jurious games,  and  not  only  as  to  the  sanitation  of 
buildings,  but  as  to  the  construction  of  them  in  pop- 
ulous places  with  respect  to  the  material,  and  the 
height,  and  means  of  escaping  from  fire;  also,  with 
reference  to  the  use  of  steam  engines  and  elevators 
and  different  kinds  of  machinery  in  workshops;  also 
as  to  locomotion  and  communication,  which  are  par- 
ticulars mentioned  by  Bentham.  We  have  many  pro- 
visions relating  to  telegraphs,  telephones,  railways, 


GENERAL  SCOPE  OF  THE  POLICE   POWER.  29 

bridges,  and  ferries.  Business  enterprises  and  cor- 
porations are  very  generally  regulated  by  the  State, 
such  as  transportation  companies,  insurance  com- 
panies, building  associations,  banking  associations, 
and  the  like,  for  the  protection  of  the  individuals 
who  may  be  interested  in  them.  Regulations  in  re-  ^ 
gard  to  the  use  of  land  and  its  occupation  by  dan- 
gerous buildings,  slaughter-houses  and  kinds  of  busi-  \ 
ness  likely  to  produce  a  nuisance  are  frequent.  For_j 
personal  protection,  particularly  of  the  young.  State 
laws  are  passed  prohibiting  employment  below  a 
certain  age,  and  in  certain  occupations  and  requiring  '^ 
a  certain  time  to  be  spent  in  schools.  With  reference 
to  adults,  employed  in  mines  or  otherwise,  the  meth- 
od of  payment,  the  hours  of  labor,  and  the  like  are 
fixed  by  the  State.  In  order  to  control  the  accumu- 
lation of  wealth,  in  a  few  States,  inheritance  taxes 
and  income  taxes  are  enacted.  In  order  to  increase 
individual  independence,  insolvency  laws,  statutes  of 
exemption  from  execution,  usury  laws  and  the  like 
are  passed.  For  professional  instruction  in  medi-  | 
cine,  law,  and  technology,  special  institutions  are 
provided  by  the  State,  and  the  exercise  of  certain 
professions  is  forbidden  without  training  according 
to  the  statutes.  Different  occupations  are  regulated, 
particularly  innkeepers,  carriers,  druggists,  hack- 
drivers,  peddlers,  auctioneers,  and  other  callings  in 
which  the  public  generally  are  interested.  For  the 
instruction  of  the  people,  not  only  are  schools  and 
colleges  provided  by  the  State,  but  libraries,  muse- 


30  GENERAL  SCOPE  OF  THE  POLICE  POWER. 

urns  and  galleries  of  art,  bureaus  of  information  with 
regard  to  sciences,  laboring  and  mercantile  indus- 
tries and  the  like.  For  the  public  health  and  charity, 
hospitals,  dispensaries  and  poor-houses  are  provided. 
Also,  for  the  protection  of  property  as  well  as  health, 
provision  is  made  for  the  prevention  of  fires,  estab- 
lishment of  waterworks,  public  lighting,  public  mar- 
kets, drainage  systems,  and  the  destruction  of  injuri- 
ous plants  and  weeds.  Many  of  these  matters  of  leg- 
islation are  delegated  by  the  State  to  municipal  cor- 
porations, which  are  governmental  agencies  for  the 
State.  With  reference  to  many  of  the  matters  above 
named,  there  has  been  a  progressive  development 
of  governmental  functions,  and  this  development  is 
likely  to  continue  with  the  increased  application  of 
science  to  the  business  of  life. 

In  other  cases  in  England,  says  Sir  E.  May,^^  the 
State  has  also  extended  its  generous  protection  to 
the  weak — even  where  its  duty  was  not  so  clear.  To 
protect  women  or  children  from  excessive  or  un- 
suitable labor,  it  has  ventured  to  interfere  with  hus- 
band and  wife,  parent  and  child,  laborer  and  employ- 
er— with  free  labor  and  wages,  productions  and  pro- 
fits. The  first  Sir  Robert  Peel  had  induced  the  legis- 
lature to  interfere  for  the  preservation  of  the  health 
and  morals  of  factory  children.  It  was  found  that 
children  were  doomed  to  immoderate  toil  in  factories 
by  the  cupidity  of  parents;  and  young  persons  and 

13  2  May's  Const.  Hist.  Eng.,  567. 


GENERAL  SCOPE  OF  THE  POLICE  POWER.  31 

females  accustomed  to  hours  of  labor,  injurious  to 
health  and  character.  The  State  stretched  forth  its 
arm  to  succor  them.  The  employment  of  children  of 
tender  years  in  factories  was  prohibited ;  the  labor 
of  the  young,  of  both  sexes  under  eighteen,  and  of 
all  women,  was  subjected  to  regulation;  an  inspec- 
tion of  factories  was  instituted;  and  provision  made 
for  the  education  of  factory  children.  The  like  pa- 
rental care  was  extended  to  other  departments  of 
labor — to  mines,  and  bleaching  works,  and  even  to 
the  sweeping  of  chimneys. 

Perhaps  the  most  marked  tendency  of  the  use  of 
the  police  power  in  our  States  at  present  is  towards 
what  is  called  labor  legislation,  such  as  statutes  con- 
cerning hours  of  labor;  forbidding  or  regulating  con- 
tracts for  the  labor  of  women  and  children ;  regulat- 
ing times  and  modes  of  payment  of  wages;  giving 
priority  to  claims  of  certain  laborers;  prohibiting 
so-called  company  stores;  prohibiting  agreements 
not  to  become,  or  continue,  members  of  labor  organ- 
izations and  guaranteeing  the  right  to  belong  to  such 
organizations. 

The  idea  that  most  of  the  problems  connected  wdth 
the  social  and  industrial  life  of  our  citizens  may  be 
solved  by  legislation,  under  the  police  power  of  the 
State,  is  very  prevalent,  and  it  is  well  that  that  power 
is  restricted  by  constitutional  provisions.  The  above 
idea  leads  to  what  is  known  as  the  nationalization 
of  land.  We  may  here  observe  that  community  of 
land,  as  in  Russia  and  Egypt,  tends  to  barbarism. 


32  GENERAL  SCOPE  OF  THE  POLICE  POWER. 

Individualism  is  the  animating  principle  of  modern 
social  progress. 

For  much  of  its  long  history,  many  of  the  cases  in 
the  Federal  Supreme  Court  have  been  devoted  to  a 
discussion  of  the  limitations  imposed  by  the  Federal 
constitution  upon  the  police  power  of  the  States,  and 
many  provisions  of  State  laws,  professedly  passed 
under  the  police  powers  of  the  States,  have  been  held 
to  be  repugnant  to  the  Federal  constitution  and  set 
aside.  At  an  early  date,  the  trend  of  the  decisions 
was  towards  the  strict  enforcement  of  these  limita- 
tions, but  the  existing  tendencies  of  the  more  recent 
decisions  have  been  rather  towards  the  supremacy 
of  the  police  power.  There  have  been  lately  notice- 
able instances  of  decisions  in  the  direction  of  a  re- 
laxed interpretation  of  the  limitations  of  the  consti- 
tution upon  the  State  legislatures.  State  laws  passed 
in  the  exercise  of  the  police  power  and  going  to  the 
very  verge  of  confiscation  of  property,  have  been  up- 
held by  the  Federal  Supreme  Court.  We  are  instruct- 
I  ed  that  the  States  are  as  much  within  the  care  of  the 
\  Federal  constitution  as  the  nation  itself  ;^^  and  un- 
1  doubtedly  no  class  of  questions  has  ever  arisen  in  the 
j  English-speaking  world  so  difficult  of  solution  as 
I  those  concerning  Federal  limitations  of  the  police 
powers  of  the  State.  The  United  States  Supreme 
Court  frequently  stands  five  to  four  in  cases  on  this 
subject;   and  changes  in  the  members  of  the  court 

14  Texas  v.  White,  7  Wall.  725;    Chase,  C.  J.  135  U.  S.  739,  Mil- 
ler, J. 


GENERAL  SCOPE  OF  THE  POLICE   POWER.  33 

have,  therefore  tended  to  the  overruling  of  previous 
cases. 

Mr.  Justice  Clifford  observed*^  that  State  police 
power  in  its  widest  sense  comprehends  the  whole 
system  of  internal  regulation  by  which  the  State 
seeks  not  only  to  preserve  the  public  order  and  to 
prevent  offences  against  her  authority,  but  also  to 
establish  for  the  intercourse  of  one  citizen  with  an- 
other those  rules  of  justice,  morality,  and  good  con-  ^ 
duct  which  are  calculated  to  prevent  a  conflict  of 
interests  and  to  insure  to  every  one  the  uninterrupt- 
ed enjoyment  of  his  own,  as  far  as  it  is  reasonably 
consistent  with  a  like  enjoyment  of  equal  rights  by  ^ 
others.    And  he  further  observed:  "Acts  of  Congress 
cannot  properly  supersede  the  police  powers  of  the 
State,  nor  can  the  police  powers  of  the  State  override! 
the  national  authority,  as  the  power  of  the  State  in  j^ 
that  regard  extends  only  to  a  just  regulation  of 
rights  with  a  view  to  the  due  protection  and  enjoy-  » 
ment  of  all;  and  if  the  police  law  of  the  State  does  i 
not  deprive  any  one  of  that  which  is  justly  and  prop-  i 
erly  his  own,  it  is  obvious  that  its  possession  by  the 
State  and  its  exercise  for  the  regulation  of  the  action 
of  the  citizens  can  never  constitute  an  invasion  of 
national  jurisdiction  or  afford  a  basis  for  an  appeal  -^ 
to  the  protection  of  the  national  authorities." 

Where  a  law  of  New  York  prohibited  methods 
which  might  result  in  the  extinction  of  fisheries,  Mr. 

isTenn.   v.   Davis,  100  U.   S.   300,  301. 


34  GENERAL  SCOPE   OF  THE   POLICE   POWER. 

Justice  Brown  said  of  the  police  power  :^^  "It  is  uni- 
versally conceded  to  include  everything  essential  to 
the  public  safety,  health,  and  morals,  and  to  Justify- 
the  destruction  or  abatement,  by  summary  proceed- 
ings, of  v/hatever  may  be  regarded  as  a  public  nuis- 
ance. Under  this  power  it  has  been  held  that  the 
State  may  order  the  destruction  of  a  house  falling 
to  decay  or  otherwise  endangering  the  lives  of  pass- 
ers-by; the  demolition  of  such  as  are  in  the  path  of 
a  conflagTation;  the  slaugh+er  of  diseased  cattle;  the 
destruction  of  decayed  or  unwholesome  food;  the 
prohibition  of  wooden  buildings  in  cities;  the  regu- 
lation of  railways  and  other  means  of  public  con* 
veyance,  and  of  interments  in  burial  grounds;  the 
/  restriction  of  objectionable  trades  to  certain  locali- 

^ties;  the  compulsory  vaccination  of  children;  the 
confinement  of  the  insane  or  those  afiiicted  with  con- 
tagious diseases;  the  restraint  of  vagrants,  beggars, 
and  habitual  drunkards;  the  suppression  of  obscene 
publications  and  houses  of  ill-fame;  and  the  prohi- 
bition of  gambling  houses  and  places  where  intoxi- 

r  eating  liquors  are  sold. '  Beyond  this,  however,  the 
State  may  interfere  wherever  the  public  interests 
demand  it,  and  in  this  particular  a  large  discretion 
is  necessarily  vested  in  the  legislature  to  determine, 
not  only  what  the  interests  of  the  public  require,  but 
what  measures  are  necessary  for  the  protection  of 
such  interests.     To  justify  the  State  in  thus  inter- 

16  Lawton  v.  Steele,  152  U.  S.    133,  136. 


GENERAL  SCOPE   OF  THE   POLICE   POWER.  35 

posing  its  aiitliority  in  belialf  of  the  public,  it  must 
appear,  first,  that  the  interests  of  the  public  gener- 
ally as  distinguished  from  those  of  a  particular  class,    i 
require  such  interference;    and,   second,  that   the 
means  are  reasonably  necessary  for  the  accomplish- 
ment of  the  purpose  and  not  unduly  oppressive  upon    ^ 
individuals.     The   legislature  may  not,   under  the 
guise  of  protecting  the  public  interests,  arbitrarily 
interfere  with  private  business,  or  impose  unusual 
and  unnecessary  restrictions  upon  lawful  occupa- 
tions.   In  other  words,  its  determination  as  to  what 
is  a  proper  exercise  of  its  police  powers  is  not  final 
or  conclusive,  but  is  subject  to  the  supervision  of  the   V 
courts." 

Where  the  State  of  Kentucky  regulated  the  sale  of 
illuminating  oil,  by  a  test  to  which  a  certain  patented 
oil  could  not  conform,  and  the  patentee  unsuccess- 
fully claimed  the  right  to  sell,  nevertheless,  by  rea- 
son of  his  patent,  Mr.  Justice  Harlan  said  the  police 
power  extends  to  the  protection  of  the  lives,  the 
health,  and  the  property  of  the  community,  against 
the  injurious  exercise  by  any  citizen  of  his  own 
rights.^  ^ 

M^  additional  head  of  the  police  power  has  re-  "^ 
ceii^  been  declared,  namely,  the  public  convenience. 
Up^(|fthat  ground,  a  law  of  Ohio  was  sustained  which 
required  the  stopping  of  through  trains,  on  an  inter-     > 
state  railroad,  at  a  certain  town.^^    In  order  to  save 

17  Patterson  v.  Ky.,  97   U.  S.    U.  S.  285;    see  Illinois  C.  R.  v. 
501.  Illinois  M.,  163  U.  S.  112. 

18  Lake  etc.  R.  R.  v.  Ohio,  173 


g6  GENERAL  SCOPE  OF  THE  POLICE  POWER. 

as  much  light  as  possible  for  adjacent  churches,  mu- 
seums, and  schools,  the  legislature  may  limit  the 
height  of  buildings  on  a  city  square.^^ 

The  Courts  of  Appeals  of  New  York  and  Texas  lay 
down  that  the  police  power  has  no  other  limitations 
than  those  imposed  by  the  constitutions.^^  The  Fed- 
eral Supreme  Court  declares  that  the  unequal  admin- 
istration of  a  State  police  law,  impartial  on  its  face, 
may  be  a  denial  of  justice  within  the  provision  of  the 
Fourteenth  Amendment.^^ 

i»  Atfy  Gen.  v.  Williams,  55       21  Yick  Wo  v.  HopKins,  118  U. 
N.  E.  Rep.  Mass.  77.  S.  356;    see  also  Re  Christensen, 

20  People  V.   Cipperly,  101  N.    43  Fed.  213. 
y.    631;     Baldwin   v.    State,    21 
Tex.  App.  591. 


CHAPTER    III. 

THE  POLICE  POWER  AS   EXERCISED   IN   THE   ADMINIS- 
TRATION OF  JUSTICE  BY  THE  STATE, 

The  administration  of  justice,  civil  and  criminal, 
within  the  State  is  wholly  under  the  control  of  the 
State,  where  there  is  no  conflict  with  the  Federal 
Constitution.  The  phrase  "law  of  the  land"  in  a  State 
in  this  regard  means  the  law  of  the  State,  and  due 
process  of  law  in  the  State  is  regulated  bj  the  law 
of  the  State.  The  power  of  the  State  in  dealing  with 
a  crime  is  not  limited  by  the  Fourteenth  Amendment 
provided  that  particular  persons  or  classes  are  not 
deprived  of  equal  and  impartial  justice.  Regular 
administration  in  the  State  courts  constitutes  due 
process,  when  operating  on  all  alike.^  The  State  may 
determine  by  what  process  legal  rights  and  objec- 
tions may  be  asserted  and  enforced,  provided  the 
method  gives  reasonable  notice  and  opportunity  to 
be  heard.2  For  example,  the  State  may  provide  for 
trials  in  civil  cases  without  a  jury,  inasmuch  as  Arti- 
cle 7  of  the  Amendments  to  the  Federal  Constitution 
guarantees  a  trial  by  jury  only  in  the  Federal  Courts.^ 
So,  a  State  may  provide  for  a  prosecution  in  a  crim- 

iLeeper  v,   Texas,   139   U.   S.    U.  S.  329;    Brown  v.  N.  J.,  175 
462.  U.  S.  172,  174. 

2  Iowa  C.  R.  R.  V.  Iowa,  160       3  Walk«r  v.  Sauvinet,  92  U.  S. 

90. 

37 


38  ADMINISTRATION    OP    JUSTICE. 

inal  case  without  indictment  by  grand  jury.  A  grand 
jury  is  not  required  by  the  words  "due  process  of 
law"  in  the  Fourteenth  Amendment,  if  there  be  a 
provision  in  the  State  constitution  according  the 
right  of  the  accused  to  the  aid  of  counsel  and  to  the 
exercise  of  the  privilege  of  cross-examination.*  In  a 
great  variety  of  cases,  as  shown  by  Mr.  Justice  Brad- 
ley,^ due  process  of  law  does  not  require  a  trial  by 
jury.  The  decisions  are,  that  mere  forms  of  adminis- 
trative process  may  be  changed,  provided  the  sub- 
stantial safeguards  are  retained  and,  that  legal  pro- 
ceedings which  are  newly  devised,  in  the  discretion 
of  the  legislative  power  of  the  State,  in  furtherance 
of  the  general  public  good  constitute  "due  process  of 
law"  in  case  the  fundamental  principles  of  liberty 
and  justice  are  preserved.^  Development  of  newly- 
devised  legal  proceedings  and  courts  has  gone  on  in 
England  from  the  establishment  of  the  King's  Bench, 
Common  Pleas  and  Exchequer  Courts  in  the  thir- 
teenth century,  to  the  Supreme  Court  of  Judicature 
Act  in  1875.  It  may  be  here  observed  that  in  the 
Federal  Courts  indictment  by  a  grand  jury  is  indis- 
pensable by  reason  of  the  Fifth  Amendment  to  the 
Federal  Constitution.'^  In  Pennsylvania  it  has  been 
held  that  the  State,  when  creating  a  new  offense, 
may  deny  a  trial  by  jury.^     But  the  case  was  one 

4  Hodgson  V.  Vermont,  168  U.  294;  Hurtado  v.  Cal.,  110  U.  S. 
S.  262,  272;  Bolln  v.  Neb.,  176  516;  Maxwell  v.  Dow,  176  U.  S. 
U.  S.  83.  581. 

5  Exp.  Wall,  107  U.  S.  259.  ^  Exp.  Wilson,  114  U.  S.  117. 

6  Pearson  v.  Yewdall,  95  U.  S.  s  Swartow  v.  Com.,  24  Pa.  131. 


ADMINISTRATION    OF    JUSTICE.  39 

proper  for  a  summary  conviction,  an  illegal  sale  of 
liquor  on  Sunday. 

Many  statutory  changes  have  been  made  in  the 
newer  States.  For  example,  the  provision  in  the 
constitution  of  the  State  of  Utah  that  a  jury  may 
consist  of  eight  persons  instead  of  twelve  persons. 
This  provision  is  held  lawful.^  In  Utah,  three-fourths 
of  a  jury  may  find  a  verdict.  But  in  general  the 
holding  is,  that  the  phrase  jury  trial  means  a  trial 
by  twelve.^ ^  The  subjects  of  majority  verdicts 
and  the  composition  of  the  jury  are  presented  with 
great  fullness  in  the  citation  in  the  foot  note.^^  The 
Supreme  Court  ruled  that  the  New  York  statute  pro- 
viding that  the  punishment  of  death  must  be  in- 
flicted by  an  electrical  apparatus  was  within  the 
police  power  of  the  State,  and  that  this  statute  does 
not  abridge  the  prisoner's  rights  or  deprive  him  of 
due  process  of  Islw}^  In  like  manner,  the  provision 
of  the  New  York  statute  as  to  solitary  confinement  of 
convicts  condemned  to  death  is  sustainable  as  consti- 
tutional.^^ In  the  case  of  the  anarchists,^^  the  statute 
of  Illinois  was  that  the  formation  of  an  opinion  by  ju- 
rors, which  opinion  had  not  been  expressed,  and  which 
opinion  had  been  founded  upon  rumor  or  newspaper 

9  state  V.  Bates,  14  Utah  293.    also  Cap.  Traction  Co.  v.  Holt, 
See  Maxwell  v.  Dow,  176  U.  S.    174  U.  S.  1. 

581.  12  Kemmler's  Case,  136  U.  S. 

10  Thompson  v.  Utah,  170  U.    436. 

S.  343.  13  McElvaine  v.  Brush,  142  U. 

11  43  L.  R.  A.,  pp.  1  to  30;    see    S.  156. 

14  Spies  V.  111.,  123  U.  S.  131. 


40  ADMINISTRATION    OF    JUSTICE. 

reports,  should  not  disqualify  a  juror,  In  case  he 
could  state  that,  nevertheless,  he  could  render  an  im- 
partial verdict,  and  in  case  the  court  should  believe 
his  statement.  The  court,  in  an  opinion  by  Chief 
Justice  Waite,  held  that  the  foregoing  provision  was 
not  repugnant  to  either  the  United  States  or  the 
State  constitutions.  The  question  should  be,  in  the 
case  of  new  legislation,  whether  the  case  belongs  to 
a  class  of  cases  originally  requiring  a  trial  by  jury.^^ 
The  State  may  provide  for  taking  land  without  a 
jury,^^  and  without  compensation,  if  the  constitution 
does  not  forbid,  as  Parliament  may  in  England.  A 
State  cannot  deny  a  colored  citizen  the  privilege  of 
being  a  juror  under  the  Fourteenth  Amendment.^'' 

In  this  connection,  it  is  proper  to  notice  an  anom- 
aly.    Fundamental  as  is  the  right  of  the  State  to 
punish  crime  committed  within  its  territory,  and  in 
the  courts  of  the  State,  nevertheless,  the  State  may 
I  not  administer  justice  as  to  offenses  against  its  own 
I  laws  where  a  correct  decision  of  the  defense  set  up 
;   depends  upon  the  construction  of  a  law  of  the  United 
States.    This  is  a  remarkable  development  of  the  law 
in  considering  the  police  power,  arising  from  the  fact 
that  the  Federal  Courts  under  the  Constitution  are 
clothed  with  jurisdiction  over  all  cases  arising  under 
the  laws  and  Constitution  of  the  United  States.    One 
Davis  was  indicted  in  a  court  of  the  State  of  Tennes- 

15  Wynehamer  v.  People,  13  N.    53  Pa.  445. 

Y.  157.  "  Strauder  v.  W.  Va.,  100  U. 

16  Penn.  R.  v.  Lutheran  Cong..    S.  303. 


ADMINISTRATION    OF    JUSTICE.  41 

see  for  killing  a  man,  as  was  claimed  in  self-defense, 
while  in  discbarge  of  his  duty  as  a  collector  of  in- 
ternal revenue.  Davis  caused  the  case  to  be  removed 
to  the  Federal  court  and  the  question  which  arose 
upon  a  motion  to  remand  the  case  to  the  State  court 
was  certified  to  the  United  States  Supreme  Court. 
Justices  Clifford  and  Field  dissented  on  the  ground 
that  the  State  had  not  ceded  its  police  power  over 
crimes  to  the  general  government.^ ^ 

In  another  case,  it  was  also  held  that  the  crime 
of  murder  under  a  law  of  a  State  is  not  justiciable 
under  that  law,  but  in  the  Federal  Court,  where  the 
alleged  crime  is  committed  by  an  officer  of  the  Fed- 
eral government  in  the  discharge  of  his  official 
duty.^^  In  such  a  case,  the  police  power  of  the  State 
yields  to  the  overriding  Federal  power  under  the  con- 
stitution, as  above  stated.  The  Chief  Justice  and 
Mr.  Justice  Lamar  dissented,  on  the  ground  that 
there  was  no  statutory  authority  of  the  United  States 
regarding  the  attendance  of  Neagle  as  a  Deputy  Mar- 
shal, to  protect  the  person  of  the  Federal  Justice 
whose  life  w^as  threatened  by  one  Terry  whom  Neagle 
killed.  The  dissenting  judges  considered  the  de- 
cision as  divesting  the  State  of  its  exclusive  juris- 
diction over  crimes  committed  within  its  own  terri- 
tory, against  its  own  laws.  This  case  is  a  remarkable 
illustration  of  the  development  of  law  by  judicial 
decision.    There  was  no  Act  of  Congress  which  could 

18  Tenn.   v.   Davis,   100  U.    S.        is  Re  Neagle,  135  U.  S.  1. 
257. 


43  ADMINISTRATION    OF    JUSTICE. 

be  produced  as  a  justification  of  the  act  of  the  pris- 
oner, a  United  States  Deputy  Marshal,  in  defending 
the  life  of  the  U.  S.  Associate  Justice.  The  defense 
was  simply  an  executive  order  of  the  President, 
through  the  Attorney-General,  instructing  the  de- 
fendant to  protect  the  person  of  the  Justice;  and  the 
alleged  crime  was  committed  by  the  defendant  with- 
in the  territory  of  the  State,  while  carrying  out  his 
orders.  But  it  was  held  that  there  is  "a  peace  of  the 
United  States"  against  which  the  crime  was  com- 
mitted. 

In  another  case  the  judges  held  that  it  was  com- 
petent for  the  State  to  punish  a  person  who  caused 
liquor  to  be  transported  into  the  State  from  another 
State,  in  closing  a  sale  made  in  that  other  State,  al- 
though the  transaction  was  lawful  in  that  other 
State  where  the  sale  was  actually  made.  The  dis- 
senting judges  held  that  the  exercise  in  the  former 
State  of  criminal  jurisdiction  over  the  transmission 
of  the  liquor  was  an  interference  with  the  Federal 
power  over  commerce  between  the  States.  The  dis- 
cussions in  this  case  will  well  repay  perusal  for  vigor 
of  argument.-*^ 

A  tax  law  granting  the  taxpayer  a  right  to  be 
heard  on  assessment  of  his  property  before  judgment 
is  due  process  of  law  for  determining  the  valua- 
tion.2i 

Statutory  criminal  conspiracies  under  the  legisla- 

20  O'Neil  V.  Vermont,  144  U.  21  Pittsburgh  etc.  Ry.  v.  Baclr- 
S-  323.  us,  154  U.  S.  421. 


\/ 


ADMINISTRATION    OF    JUSTICE.  43 

tion  of  the  State  have  produced  many  decisions  de- 
reloping  the  old  law  concerning  conspiracies.  The 
doctrine  of  that  old  law--  was  applied  at  an  early 
day  to  organizations  of  labor  to  raise  wages,  and  the 
decisions  condemned  such  combinations.  Later,  it 
was  held  not  unlawful  for  workmen  to  combine  un- 
der an  agreement  that  they  would  not  work  except 
for  certain  wages,  and  that  it  was  not  unlawful  for 
masters  to  agree  to  pay  only  certain  wages.^^  But 
the  later  decisions  are  unanimous  that  where  threats 
and  intimidations  are  a  part  of  the  combination  a 
criminal  conspiracy  exists. 

The  employment  of  the  writ  of  injunction  to  pre- 
vent criminal  acts  and  thus  to  administer  the  police 
power  of  the  State  by  equity  process  in  the  suppres- 
sion of  crime  k  a  noteworthy  instance  of  the  devel- 
opment of  the  law  by  judicial  decisions.  The  ground 
of  the  use  of  the  writ  seems  to  be  that  such  criminal 
conspiracies  as  are  above  referred  to  threaten  the 
destruction  of  property .--^  The  case  in  the  foot  note, 
in  England,  one  of  the  earliest,  if  not  the  earliest,  is 
placed  on  that  ground,  viz.:  protection  of  private 
property  threatened  by  some  act  which  chances  to 
be  a  criminal  act.  In  the  so-called  Ann  Arbor  cases,^' 
the  Court  said  the  power  of  a  railroad  company  to 
carry  freight  and  passengers  was  property,  and  con- 

22  Rex  V.   Cambridge  Tailors,  24  l.  r.  6  Eq.  551,  Springhead 
8  Mod.  11.  V.  Riley. 

23  Stevedores  Ass'n  v.  Walsh,  25  Toledo  etc.  R.  R.  v.  Penn. 
2  Daly  N.  Y.  1;    Carew  v.  Ruth-  R.  R.,  54  Fed.  730,  746. 
erford,  106  Mass.  1. 


44  ADMINISTRATION    OF    JUSTICE. 

sequently  a  combination  of  employes  to  cripple  and 
destroy  the  power  of  transportation  was  an  inter- 
ference with  property  which  that  court  could  enjoin 
in  equity.  In  1885,  in  England,  a  conspiracy  to  mo- 
nopolize the  trade  with  China  w^as  h^ld  to  be  an  of- 
fense, but  it  was  said  that  an  injunction  was  not 
called  for.^^  The  recent  development  of  the  law  by 
our  own  courts  in  this  regard  appears  to  carry  out 
to  a  legitimate  conclusion  the  use  of  the  writ  of  in- 
junction to  prevent  criminal  boycotts.^''^  In  cognate 
decisions  of  the  Federal  Court  where  the  threatened 
conspiracy  is  against  a  railway  property,  so  that  the 
public  is  likely  to  be  injured,  protection  of  the  public 
appears  to  be  the  ground  on  which  the  decision  for 
the  use  of  the  writ  of  injunction  is  placed.^^  The 
Massachusetts  doctrine  appears  to  be  that  the  right 
of  a  person  to  carry  on  business  is  property  to  be 
protected  by  injunction.^^ 

It  cannot  be  denied  that  suppression  of  criminal 
acts  by  civil  process,  under  the  police  power  of  the 
State,  is  a  development  of  the  law^  by  judicial  de- 
cision more  remarkable  than  any  instance  of  develoj)- 
ment  up  to  the  present  time.  This  development  has 
been  much  criticised  in  the  public  press  and  has  been 
derisively   called   government   by   injunction.     The 

26  Mogul  Steamship  Co.  v.  Mc-       28  Farmers'  L.  &  T.  Co.  v.  N. 
Gregor.  L.  R.  15  Q.  B.  176;    ap-    P.  R.  R.,  60  Fed.  803. 

proved  in  Lough  v.  Outerbridge,  29  Vegelhahn  v.  Guntner,  167 

143  N.  Y.  271.  Mass.    92;     so,  also,    in    Mich., 

27  Sherry  v.  Perkins,  147  Mass.  Beck  v.   R.   R.  etc.   Union,   118 
212.  Mich.  497. 


ADMINISTRATION    OF    JUSTICE.  45 

cases  are  numerous  and  several  are  in  the  foot  note.^"^ 
The  development  of  equity  practice  in  general,  by 
the  decisions,  may  here  be  referred  to.  It  was  said 
by  Lord  Cottenham^^  that  it  is  the  duty  of  the  court 
to  adapt  its  practice  and  course  of  proceeding  to  the 
existing  state  of  society,  and  not  to  decline  to  admin- 
ister justice  and  enforce  rights  because  no  remedy 
appears  to  exist.  Sir  George  Jessel,  Master  of  the 
Rolls,  declared^^  that  it  must  not  be  forgotten  that 
the  practice  of  the  Court  of  Equity  has  been  estab- 
lished from  time  to  time,  altered,  improved  and  re- 
fined; adding  that  in  many  cases,  we  know  the  names 
of  Chancellors  who  invented  new  rules  and  that 
those  inventions  were  made  for  the  purpose  of  secur- 
ing better  administration  of  justice.  He  then  cites 
as  examples  the  separate  use  of  married  women,  the 
restraint  of  alienation,  modern  rules  against  perpe- 
tuity and  the  rules  concerning  equitable  waste.  He 
further  says  that  if  we  want  to  know  what  the  rules 
of  equity  are,  we  must  look  rather  to  the  more  mod- 

30  United  States  v.  Working-  Council,   53  N.   J.   Eq.   101-136; 

men's    Council,    54    Fed.    994;  Elder   v.    Whitesides,   72     Fed. 

South  Cal.   Ry.   Co.   v.  Ruther-  724;  Shoe  Co.  v.  Saxey,  131  Mo. 

ford,     62     Fed.     796;       Farm-  212;     Davis  v.   Zimmerman,   98 

ers'     L.     &     T.     Co.     v.     Nor.  N.  Y.  Sup.  489;  Cons.  Steel  Co. 

Pac.    R.    R.,    60    Fed.  803;     63  v.  Murray,  80  Fed.  811;    Nash- 

Fed.  310;    Farrar  v.  Close,  L.  R.  ville  Ry.  Co.  v.  MacNiel,  82  Fed. 

42  B.  602,  612;    United  States  v.  65-87;    Hopkins  v.  Oxley  Stave 

Debs,  64  Fed.  724;  United  States  Co.,  83  Fed.  912. 

V.  Elliott,  62  Fed.  801;    Thomas  31  wallworth  v.  Holt,  4  Mylne 

V.   Cincinnati  Ry.   Co.,   62  Fed.  &  Craig,  635. 

803;     China  Co.  v.   Brown,   164  32  Knatchbull  v.  Hallatt,  L.  R., 

Penn.  449;    Barr  v.  Essex  Trade  13  Ch.  Div.  710. 


46  ADMINISTRATION    OF   JUSTICE. 

ern  than  to  the  more  ancient  cases.  We  may  here 
observe  that  the  phrase  common  law,  in  its  enlarged 
sense,  includes  equity;  and  when  we  consider  the  de- 
velopment of  law  we  include  equity  as  well  as  law 
strictly  so  called. 

The  extent  to  which  the  State  may  go  under  the 
police  power  in  declaring  acts  to  be  criminal  is  illus- 
trated by  a  case  sustaining  an  act  of  Pennsylvania 
making  it  a  crime  to  convey  or  settle  upon  lands  in 
certain  counties  in  that  State  under  any  title  not 
derived  from  that  State.^^  Mr.  Justice  Grier  speaks 
of  the  "power  which  has  been  denominated  the  police 
power,"  and  says  that  under  that  power  a  law  of 
Illinois  punishing  the  harboring  of  a  fugitive  slave 
was  sustainable,  and  this  although  the  same  act 
was  punishable  under  Federal  law.^*  A  law  exclud- 
ing a  minister  of  the  gospel  from  the  exercise  of  his 
clerical  function  passed  by  the  State  of  Missouri  was 
not  sustained  as  to  offenses  before  its  passage,  and 
because  it  instituted  a  new  rule  of  evidence  of  con- 
viction. The  statute  created  a  qualification  or  con- 
dition to  the  right  to  preach  or  teach.  Cummings 
was  a  Catholic  priest  and  exercised  his  calling  con- 
trary to  the  statute,  and  his  conviction  was  set 
aside.^^  Aside  from  this  retrospective  feature,  the 
law  seems  to  have  been  regarded  by  the  judges  as 
within  the  police  power  of  the  State.    A  law  of  New 

33  Com.  V.  Franklin,  4  Dallas       ss  Cummings   v.    Missouri,    4 
255.  Wall.  277. 

34  Moore  v.  Illinois,  14  How.  13. 


ADMINISTRATION    OF    JUSTICE.  47 

York  that  convicted  persons  should  not  practice  med- 
icine was  sustained  bj  the  Federal  Supreme  Court.^^ 
There  is  an  instructive  case  with  regard  to  the  right 
of  the  State  to  make  laws  which  relate  to  remedy 
or  mode  of  procedure  and  those  which  operate  direct- 
ly upon  the  alleged  offenses.^'^  By  the  law  of  the 
State,  when  a  certain  homicide  was  committed,  there 
was  a  certain  sentence  to  be  inflicted;  but  before  the 
prisoner's  plea  of  guilty  was  entered  the  law  was 
changed  and  it  was  held  that  the  State  was  forbidden 
to  make  a  law  which  as  to  this  case  would  violate  the 
provisions  of  the  United  States  Constitution  with  re- 
gard to  ex  post  facto  laws,  four  judges  dissenting. 
While  it  was  competent  for  the  State  to  prescribe 
different  modes  of  procedure  and  to  change  the  law 
as  it  did,  yet  the  law  could  not  be  applied  to  past 
transactions.  This  is  illustrated  by  a  decision  con- 
cerning a  statute  of  Minnesota,  which  required  that 
criminal  cases  should  be  tried  in  the  counties  where 
the  offenses  were  committed;  another  law  changed 
the  place  of  trial  and  it  was  held  by  the  Supreme 
Court  of  that  State  and  the  Supreme  Court  of  the 
United  States  that  change  of  place  of  trial  of  an 
alleged  offense  after  its  commission,  was  within  the 
power  of  the  State  and  was  not  forbidden  as  an  ex 
post  facto  law.^^  The  dissenting  judges  in  the  Kring 
case  held  that  the  law  under  discussion  in  that  case 

36  Hawkes  v.  N.  Y.,  170  U.  S.        37  Kring  v.  Missouri,  107  U.  S. 
189.  221. 

3s  Gut  V.  State,  9  Wall.  35. 


48  ADMINISTRATION    OF    JUSTICE. 

merely  affected  the  remedy  and  was  consequently 
applicable  to  the  case  of  an  offense  previously  com- 
mitted. 

Proceedings  for  contempt  of  court  may  be  regu- 
lated by  the  State.  Such  proceedings  cannot  be  sub- 
ject to  the  right  of  trial  by  jury,  and  constitute  due 
process  of  law.  This  was  held  with  regard  to  a  pro- 
ceeding in  the  State  of  Iowa  under  the  law  of  that 
State.^^  The  State  may  impose  such  punishment  as 
it  thinks  proper  without  infringing  upon  that  pro- 
vision of  the  Federal  Constitution,  the  8th  amend- 
ment, which  forbids  the  imposition  of  excessive  fines 
and  the  infliction  of  cruel  and  unusual  punishments. 
This  was  held  with  regard  to  a  law  of  Massachu- 
setts.^o 

There  are  many  cases  concerning  the  punishment 
by  the  State  of  acts  done  by  individuals  in  carrying 
out  their  religious  beliefs  and  opinions.  The  de- 
cisions are  that  while  the  State  cannot  interfere  with 
belief  and  opinion  upon  religious  subjects,  it  may 
punish  practices  indulged  in  under  such  beliefs  and 
opinions.  This  was  so  held  unanimously  with  re- 
gard to  the  constitution  of  Utah  affecting  the  power 
of  the  State  in  that  regard  and  making  the  practice 
of  polygamy  an  offense.  It  was  ruled  that  religious 
beliefs  cannot  be  accepted  as  a  justification  for  an 
overt  act  made  criminal  by  the  law  of  the  State.*^ 

39  Eilenbecker  v.  Plymouth  4i  Reynolds  v.  U.  S.,  98  U.  S. 
Co.,  134  U.  S.  31.  145. 

<o  Pervear  v.  Com.,  5  Wall.  475. 


ADMINISTRATION    OF    JUSTICE.  49 

The  constitutions  of  several  States,  in  providing 
for  religious  freedom,  have  declared  expressly  that 
such  freedom  shall  not  be  construed  to  excuse  acts 
of  licentiousness,  or  to  justify  practices  inconsistent 
with  the  peace  and  safety  of  the  State.  Thus,  the 
constitution  of  New  York  of  1777  provided  as  fol- 
lows: "The  free  exercise  and  enjoyment  of  religious 
profession  and  worship,  without  discrimination  or 
preference,  shall  forever  hereafter  be  allowed,  within 
this  State,  to  all  mankind :  Provided,  that  the  liberty 
of  conscience,  hereby  granted,  shall  not  be  so  con- 
strued as  to  excuse  acts  of  licentiousness,  or  justify 
practices  inconsistent  with  the  peace  or  safety  of  this 
State."^^  The  same  declaration  is  repeated  in  the 
constitution  of  1821,^3  and  in  that  of  1846,'**  except 
that  for  the  words  "hereby  granted"  the  words  "here- 
by secured"  are  substituted.  The  constitutions  of 
California,  Colorado,  Connecticut,  Florida,  Georgia, 
Illinois,  Maryland,  Minnesota,  Mississippi,  Missouri, 
Nevada  and  South  Carolina  contain  a  similar  declar- 
ation. 

Referring  to  what  is  said  above  in  regard  to  pro- 
cess from  courts  of  equity  in  criminal  cases,  it  may  be 
added  that  it  has  been  held  a  part  of  the  equity  juris- 
diction in  a  State  court,  by  sustainable  statutes,  to 
restrain  or  abate  by  injunction  common  nuisances 
created  by  statutes;  and  the  fact  that  the  keeping  a 
nuisance  is  a  crime  does  not  deprive  a  court  of  equity 

*2  Art.  XXXVIII,  2  Chart.   &        43  Art.  VII,  §  3,  Id.  1347. 
Const.  1338.  44  Art.  I,  §  3,  Id.  1351. 


50  ADMINISTRATION    OF    JUSTICE. 

of  power  under  the  statute  to  abate  a  nuisance.^^ 
The  right  to  proceed  in  equity  to  abate  public  nuis- 
ances and  destroy  private  property  in  the  exercise  of 
the  police  power  when  necessary  for  the  protection 
of  the  public  seems  to  be  undoubted.^^  But  in  gen- 
eral, equity  has  no  jurisdiction  over  the  prosecution 
or  punishment  of  crimes.^^ 

Continuing  in  regard  to  the  decisions  respecting 
the  limit  of  police  power  over  religious  bodies,  it  may 
be  said  that  laws  are  sustained  respecting  religious 
practices  which  may  cause  disturbance.  For  ex- 
ample, where  a  statute  forbade  the  beating  of  a 
drum  in  a  town,  it  was  said  that  the  statute  did  not 
invade  the  right  of  religious  worship  secured  by  the 
constitution  of  the  State  of  New  Hampshire.*^  It 
was  said  that  it  was  no  defense  to  show  that  the  act 
was  done  in  the  performance  of  religious  worship 
and  in  accordance  with  a  sense  of  religious  duty; 
and  that,  in  fact,  no  actual  disturbance  of  the  public 
peace  or  of  the  religious  worship  of  others  resulted. 
In  general,  the  decisions  are  that  the  State  has  the 
authority  to  regulate  the  time,  method  and  circum- 
stances under  which  the  right  may  be  enjoyed  or 
exercised,  without  conflicting  with  constitutional 
guarantees.  For  example,  a  religious  body  cannot 
take  possession  of  a  street  of  a  city,  in  violation  of 

45Att'y    Gen.    v.    Hunter,    1  Co.,  104  Mass.  239;    Bancroft  v. 

Dev.    Eq.    N.    C.    12;     Mink    v.  Cambridge,  126  Mass.  450. 

Hopeman,  87  111.  450.  -t^  in  re  Sawyer,  124  U.  S.  200. 

4ti  Att'y  Gen.   v.   Lynn  R.  R.,  *«  State    v.    White,    2    N.    E. 

16  Gray  242;     Id.   v.   Tudor  Ice  Rep.  867. 


ADMINISTRATION    OF    JUSTICE.  51 

rules  enacted  either  by  the  State  or  municipality, 
for  the  purpose  of  public  worship.  An  ordinance  in 
the  city  of  Boston  forbade  the  performance  upon  mu- 
sical instruments  in  the  streets  and  squares  unless 
licensed  by  a  certain  board  and  it  was  held  that  a 
member  of  the  Salvation  Army,  so-called,  was 
properly  punished  for  violating  the  ordinance.^® 
These  cases  are  examples  of  the  current  of  decisions 
upon  the  subject. 

State  laws  which  impose  hard  labor  as  a  portion  of 
punishment  are  sustained.  For  example,  an  ordi- 
nance of  a  city  provided  for  the  employment  of 
prisoners  on  the  streets  or  any  public  works  of  the 
city  needing  labor;  and  it  was  held  that  the  ordi- 
nance was  not  in  conflict  with  Art.  13  of  the  Amend- 
ments of  the  U.  S.  Constitution  prohibiting  slavery 
or  involuntary  servitude  or  the  bill  of  rights  in  the 
constitution  of  the  State  of  Kansas.^^  It  is  held  by 
the  judges  that  the  prohibition  against  cruel  and 
unusual  punishment  applies  to  the  subject.^^  The 
prohibition  against  slavery  does  not  apply  at  all  to 
punishment  of  offenders  by  imposition  of  hard 
labor.^^  The  hiring  out  of  convicts  is  sustained  by 
the  decisions,  and  the  statutes  on  the  subject  are 
held  constitutional  and  valid.^^ 

A  State  may  establish  different  courts  of  appeal 

49  Com.  V.  Plaisted,  148  Mass.  52  Munroe  v.  Meuer,  35  La. 
375.  Ann.  1192. 

50  Topeka  v.  Boutwell,  53  ^^  Mason  Co.  v.  Nain  Coal 
Kansas  20.  Co.,  87  Ky.  467. 

51  People  V.Brooks,  16  Calif.  11. 


52  ADMINISTRATION    OF    JUSTICE. 

for  different  portions  of  the  State,  without  denying 
equal  protection.^*  So,  the  right  of  appeal  from 
conviction  in  a  city  police  court  may  be  denied,  al- 
though allowed  in  other  parts  of  the  State,  without 
infringing  the  Fourteenth  Amendment.^^  So  giving 
the  State  a  greater  number  of  challenges  in  a  large 
city  than  in  other  parts  of  the  State  does  not  deny 
equal  protection.^^ 

54  Missouri  V.Lewis,  101  U.S.  22.       se  Hayes  v.  Missouri,  120  U.  S. 

55  Sullivan  v.  Hovey,  82  Mich.    28. 
451. 


CHAPTER  IV. 

LIMITATIONS    ON    THE   POLICE    POWER    RESPECTING 
FREEDOM   OF    CONTRACT. 

The  subject  of  this  chapter  is  of  great  practical 
importance.  Public  policy  requires  the  utmost 
liberty  of  contracting  says  Sir  Geo.  Jessel.^  As  re- 
spects private  property  and  employments  the  State 
should  not  meddle.  Even  contracts  of  exemption 
from  liability  for  negligence  may  be  permitted.-  And 
also  from  liability  for  losses  on  connecting  lines 
of  transportation.^  In  recent  years,  there  has  been 
a  pronounced  tendency  towards  interfering  with  free- 
dom of  contract  by  legislation.  It  is  an  interesting 
question  how  far  the  State  can  go  in  this  direction. 
The  general  unrest  and  agitation  in  many  of  the 
States  with  regard  to  the  relations  of  master  and 
servant  has  affected  the  legislatures.  In  Massa- 
chusetts, a  statute  forbidding  an  employer  to  with- 
hold wages  from  an  employee  engaged  in  weaving, 
for  imperfections  in  his  work,  is  held  in  violation  of 
that  provision  of  the  constitution  guaranteeing  the 
right  of  acquiring,  possessing  and  protecting  prop- 

1  Printing  Co.  v.  Sampson,  L.  common  law  of  N.  Y.  differently 
R.  19  Eq.  Cas.  462.  from     the     State     courts.      See 

2  Bait.  etc.  R.  R.  v.  Voigt,  Smith  v.  Ala.,  124  U.  S.  465,  478. 
176  U.  S.  490,  505;  distinguish-  3  Missouri  v.  McCann,  174  U. 
Ing  R.  R.  V.  Lockwood,  17  Wall.  S.  580. 

357,  which  case  interpreted  the 

53 


54  RESPECTING   FREEDOM    OF    CONTRACT. 

erty,  as  this  right  includes  the  right  of  making 
reasonable  contracts  which  shall  be  under  the  pro- 
tection of  the  law.*  The  judges  stated  that  the 
statute  attempted  to  compel  payment  under  a  con- 
tract for  good  work,  when  only  inferior  work  is  done. 
They  stated  that  the  right  to  employ  weavers  and 
to  make  proper  contracts  with  them,  was  protected 
by  the  constitution;  and  to  forbid  the  making  of 
such  contracts  violates  a  fundamental  principle  of 
right  recognized  in  the  constitution.  It  is  an  essen- 
tial limitation  of  the  contract  that  full  payment 
should  be  made  only  when  the  contract  is  performed. 
The  same  is  laid  down  in  Pennsylvania  and  Illinois 
and  West  Virginia.^  Mr.  Justice  Holmes  dissented 
upon  the  ground  that  the  operatives  had  persuaded 
the  legislature  that  they  w^ere  often  cheated  out  of  a 
part  of  their  wages  under  a  pretense  that  work  done 
was  imperfect,  and  he  cited  a  federal  and  an  In- 
diana case.^  In  the  Indiana  case,  a  statute  was  sus- 
tained forbidding  persons  engaged  in  mining  or 
manufacturing  from  making  any  contract  in  advance 
to  accept  anything  else  than  lawful  money  of  the 
United  States.  The  statute  also  required  the  em- 
ployer to  pay  the  employees  at  least  every  fortnight. 
The  West  Virginia  case  cited  by  the  majority  of  the 
Massachusetts  court,  declared  that  a  like  law  for- 
bidding the  issuing  of  any  paper  for  the  payment  of 

4  Com.  V.  Perry,  155  Mass.  117.    Illinois  294;    State  v.  Goodwill, 

5  Godcharles  v.  Wigeman,  113    33  W.  Va.  179. 

Penn.  431;    Millet  v.  People,  117       e  Slaughter  Ho.  Gas.,  16  Wall. 


RESPECTING   FREEDOM    OF    CONTRACT.  55 

labor  in  mining  or  manufacturing,  not  redeemable 
within  thirty  days  in  lawful  money,  with  interest, 
could  not  be  sustained;  and  the  same  court  also  held 
that  a  law  could  not  be  sustained  that  forbade 
miners  and  manufacturers,  also  sellers  of  supplies 
and  merchandise,  selling  to  their  workmen  at  a 
greater  profit  than  to  others.  The  court  declared 
that  the  law  was  an  unjust  interference  with  private 
contracts,  and  was  class  legislation^  But  similar 
laws  exist  in  England,  where  there  is  no  constitution 
limiting  the  power  of  Parliament.  The  English 
"Truck  Act,"  so-called,  consolidates  many  acts  of 
previous  reigns.^  The  Pennsylvania  case,  cited  by 
a  majority  of  the  court  in  the  above  Massachusetts 
cas^  held  that  a  law  of  Pennsylvania  prohibiting  the 
issue  of  store-orders  to  pay  employees  in  mining  or 
manufacturing,  was  void  as  to  persons  capable  of 
making  their  own  contracts.  The  constitutional  pro- 
vision of  Pennsylvania  was  that  there  should  be  no 
special  legislation  regulating  labor,  trade,  mining 
or  manufacturing.  The  statute  of  Massachusetts  for- 
bidding the  employment  of  women,  or  children  under 
eighteen,  in  manufacturing,  more  than  ten  hours  a 
day,  was  sustained  as  a  health  regulation  under  the 
police  power.^  That  liberty  which  is  guaranteed  by 
the  constitution  in  Missouri  includes  the  right  to 

36;    Hancock  v.  Yaden,  121  Ind.  s  stat.  1  and  2,  William  IV.,  c. 

366.  37. 

"  State  V.  Fire  etc.  Co.,  33  W.  »  Com.  v.  Hamilton  Mfg.  Co., 

Va.  188.  120  Mass.  283. 


66  RESPECTING   FREEDOM    OF    CONTRACT. 

freely  buy  and  sell,  make  contracts,  and  have  them 
enforced;  and  the  classification  of  mining  and  manu- 
facturing enterprises  by  legislation  regulating  the 
mode  and  payment  of  employees  cannot  be  sustained. 
This  was  held  concerning  the  statute  forbidding  min- 
ing and  manufacturing  employers  from  paying 
wages  in  any  evidence  of  debt  payable  otherwise 
than  in  lawful  money  of  the  United  States,  unless 
such  evidence  of  debt  is  negotiable  and  redeemable 
either  in  cash  or  supplies  without  discount.  The 
judges  stated  that  the  statute  was  void  because  it 
deprived  persons  of  liberty  without  due  process  of 
law.io 

What  is  called  class  legislation  is  forbidden  under 
the  various  constitutions.^^  Yet  the  courts  have  sus- 
tained statutes  in  regard  to  the  liabilities  of  rail- 
roads for  injuries  or  death,  where  such  liability  was 
not  imposed  upon  other  corporations  or  persons.^ ^ 
And  such  statutes  are  sustained  where  the  in- 
jury has  been  suffered  without  any  negligence 
on  the  part  of  the  company .^^  In  Illinois  a  law  for- 
bidding the  transfer  of  title  to  non-resident  aliens 
was  sustained,  athough  it  could  be  applied  only  to 
certain  classes  of  non-resident  aliens  under  certain 
treaties.^*     In  like  manner,  statutes  requiring  per- 

10  state  V.  Loomis,  115  Mis-  12  Louisville  Co.  v.  Id.,  92  Ky. 
souri  307.  277. 

11  Luman  v.  Hutchins  Co.,  i3  Thatcher  v.  Maine  C.  R.  R., 
Md.  Nov.  '99;  State  v.  Wagener,  85  Maine  502. 

Minn.  '99;  Denver  v.  Bach,  Colo.  "  Wunderle  v.  Id.,  144  111.  40. 
'99.    State  v.  Broadbent,  Md.  '99. 


RESPECTING   FREEDOM    OF    CONTRACT.  57 

sons  of  certain  professions  to  observe  certain  condi- 
tions before  practicing  have  been  sustained  under 
a  constitutional  provision  forbidding  class  legisla- 
tion.^^ The  same  was  decided  in  reference  to  the 
trade  of  plumbers.^^  But  such  a  statute  cannot  ex- 
cept one  class  of  practitioners.^'^  Statutes  allowing 
taxation  of  an  attorney's  fee  against  a  railroad  com- 
pany upon  a  judgment  for  killing  a  person,  have 
been  said  to  be  class  legislation.^^  But  other  courts 
have  sustained  such  legislation.^^  A  statute  pro- 
viding that  in  case  of  a  railroad  company's  discharg- 
ing an  employee,  it  should  pay  him  the  amount  due 
within  fifteen  days  after  demand  upon  the  nearest 
station  agent,  under  a  penalty  of  becoming  liable 
to  20  per  cent  on  the  amount  due,  as  damages,  was 
declared  unconstitutional  as  class  legislation.^*'  A 
State  statute  making  a  railroad  company  liable  for 
stock  killed  whether  the  company  was  negligent  or 
not,  and  fixing  the  damages  according  to  a  schedule, 
was  held  to  deprive  the  company  of  property  without 
due  proc€!Ss  of  law.^*  A  similar  statute  in  Alabama 
was  declared  not  a  sustainable  exercise  of  the  po- 
lice power.--    Under  the   constitution   of  Pennsyl- 

15  Dent  V.   W.  Va.,  129  U.  S.  v.  Matthews,  174  U.  S.  96,  and 
114.  cases  cit.  maj.  &  diss.  op. 

16  72  Md.  464,  20  San  Ant.  R.  R.  v.  Wilson, 

17  State  V.  Hinman,  65  N.  H.  4  Tex.  Civ.  App.  329. 

103.  21  Wadsworth  v.  U.  P.  R.  R., 

i«  Lafferty  v.  Chi.  etc.  R.  R.,  18  Colo.  600. 

71  Mich.  35.  22  b.  &  M.  R.  R.  v.  Parsons, 

19  Perkins  v.  St.  L.  etc.  R.  R.,  100  Afe.  662. 
103  Mo.  52;    Atchison  etc.   Co. 


58  RESPECTING    FREEDOM    OF    CONTRACT. 

vania,  a  statute  in  the  nature  of  a  contract  with  a 
corporation,  by  which  the  power  of  eminent  domain 
is  surrendered,  does  not  bind  a  later  legislature.^^ 
Xor  can  a  legislature  dispossess  itself  of  the  right  to 
exercise  the  police  power.^^ 

In  many  of  the  States,  there  has  been  legislation 
in  regard  to  interchangeable  mileage  tickets  and  the 
decisions  of  the  courts  have  been  in  conflict  with 
regard  to  them.  In  Massachusetts  it  was  held,  that 
the  interchangeable  mileage  act  of  that  State  was 
unconstitutional,  because  an  illegal  restraint  upon 
business  rights;  two  of  the  judges  dissented.^^  As 
will  be  shown  in  another  place,  contracts  with  re- 
gard to  railway  rates  for  transportation  may  be 
regulated  by  the  State,  or  by  a  commission  appointed 
by  the  State,  provided  such  rates  are  reasonable,  that 
is  to  say  that  they  will  enable  the  company  to  pay  its 
expenses, and  interest  upon  its  bonded  debt,andyield 
a  fair  return  upon  the  capital  invested;  otherwise 
the  effect  is  to  deprive  the  company  of  its  property 
without  due  process  of  law.^*^  A  statute  of  Massa- 
chusetts compelling  sales  of  oats  and  meal  to  be  by 
the  bushel  was  sustained.^^  Laws  requiring  owners 
of  buildings  to  erect  fire  escapes  are  sustained  by 
the  courts.2^    The  law  of  Missouri  authorizing  cities 

23  Lockhaven    Bridge    Co.    v.  26  m.  &  St.  P.  Ry.  v.  Minn., 
Clinton  Co.,  157  Pa.  379.  134  U.  S.  418. 

24  Am.  Tel.  Co.  v.  W.  N.  Tel.  27  Eaton  v.  Kegan,  114  Mass. 
Co.,  67  Ala.  32.  433. 

25  Att'y   Gen.   v.   Old   Colony  2s  Pauley  v.   Steam  etc.  Co., 
R.  R.,  160  Mass.  62.  131  N.  Y.  90. 


RESPECTING    FREEDOM    OF    CONTRACT.  59 

to  establish  a  building  line  on  boulevards  and  for- 
bidding buildings  nearer  the  street  than  the  line, 
was  held  against  the  constitution,  because  it  de- 
prived owners  of  property  without  providing  for 
compensation.^^  Laws  regulating  the  time  and  mode 
of  payment  of  wages,  and  forbidding  contracts  for 
the  labor  of  women  and  children,  and  giving  priority 
to  claims  of  certain  laborers  have  been  very  ex- 
tensively passed  by  the  States  and  in  general  have 
been  sustained  by  the  decisions.  Many  of  such  laws 
have  been  copied  from  English  statutes,  but  it  must 
always  be  borne  in  mind  that  in  England  there  is 
no  restraint  upon  the  power  of  Parliament  with 
regard  to  enactment  of  such  laws.  Statutes  fixing 
the  hours  of  labor,  such  as  the  so-called  eight-hour 
law,  have  been  very  generally  condemned  by  the 
judges  of  the  State  courts ;  but  the  Supreme  Court  of 
the  United  States  in  a  late  decision  upheld  the  UtaJh 
eight-hour  law  as  to  mines — not  all  eight-hour  laws.*® 
The  law  of  Utah  restricted  the  employment  of  work- 
men in  underground  mines  to  eight  hours  a  day 
under  a  penalty  of  fine  and  imprisonment. 

Holden,  who  petitioned  the  State  court  for  his 
discharge  upon  habeas  corpus,  had  been  complained 
against  in  the  State  court  of  Utah  for  unlawfully 
employing  one  J.  Anderson  to  labor,  as  a  miner  in 
the  underground  works  of  a  mine,  for  the  period  of 
ten  hours  each  day,  and  unlawfully  requiring  said 

29  St.  Louis  V.  Hill,  S.  C.  Mis-       30  Holden  v.  Hardy,  169  U.  S. 
souri,  1893.  366. 


60 


RESPECTING  FREEDOM  OF  CONTRACT. 


Anderson,  by  virtue  of  the  employment,  to  labor  as 
aforesaid.  Holden  pleaded  that  he  was  a  native 
born  citizen  of  the  United  States,  residing  in  the 
State,  and  that  Anderson  voluntarily  engaged  his 
services  for  ten  hours  per  day,  and  that  the  facts 
charged  did  not  constitute  a  crime,  because  the  act 
of  the  State  of  Utah,  creating  and  defining  the  sup- 
posed offense,  is  repugnant  to  the  Constituion  of  the 
United  States;  1st,  because  it  deprives  the  defend- 
ant and  all  employers  and  employees  of  the  right  to 
make  contracts  in  a  lawful  way  and  for  legal  pur- 
poses; 2nd,  because  it  is  class  legislation  and  not 
uniform  or  equal  in  its  provisions ;  3d,  because  it  de- 
prives defendant  and  all  employers  and  employees  of 
equal  protection  of  the  laws,  abridges  privileges  and 
immunities  of  the  defendant  as  a  citizen  of  the 
United  States  and  deprives  him  of  property  and  lib- 
erty without  due  process  of  law.  The  defendant  was 
found  guilty  and  punished  by  fine  and  imprisonment 
and  took  out  a  writ  of  habeas  corpus.  The  Supreme 
Court  of  the  State  denied  the  application  and  Holden 
took  a  writ  of  error  to  the  Supreme  Court  of  the 
United  States,  assigning  as  error  the  unconstitution- 
ality of  the  statute.  All  the  grounds  of  defense  were 
considered  together,  and  the  court  gave  an  historical 
review  of  the  cases  under  the  Fourteenth  Amend- 
ment, dividing  them  into  two  classes:  1st,  where  a 
State  legislature  is  alleged  to  have  unjustly  discrim- 
inated in  favor  of  a  class  and  has  denied  the  benefit 
of  due  process;   second,  where  the  legislature  of  a 


RESPECTING   FREEDOM    OF    CONTRACT.  61 

State  has  changed  its  general  system  of  jurispru- 
dence by  abolishing  that  which  had  been  before 
thought  necessary  to  the  administration  of  justice 
and  the  protection  of  the  individual.  After  con- 
sidering the  cases  pretty  fully,  the  judges  said  that 
the  case  demonstrated  that  the  court  has  not  failed 
to  recognize  that  the  law  is  to  a  certain  extent  a 
progressive  science,  and  that  in  some  States,  meth- 
ods of  procedure  deemed  essential  to  protection, 
safety  and  liberty  had  been  found  to  be  no  longer 
necessary,  and  that  restrictions  formerly  held  upon 
conduct  had  proved  detrimental ;  and  that,  upon  the 
other  hand,  it  had  become  necessary  to  provide  ad- 
ditio-nal  protection  for  certain  classes  of  persons, 
particularly  those  engaged  in  dangerous  or  un- 
healthful  employments.  The  judges  then  considered 
some  leading  instances  of  law  reform  and  procedure 
and  then  observed  that  it  is  impossible  to  fix  the 
character  or  extent  of  changes,  in  view  of  the  fact 
that  from  the  signature  of  the  Magna  Charta  down 
to  the  present  day,  amendments  have  been  made 
with  amazing  frequency  and  that  this  process  would 
doubtless  continue,  and  that  the  law  has  adapted 
itself  to  the  new  conditions  of  the  States  and  par- 
ticularly to  the  new  relations  of  employers  and  em- 
ployees as  they  arise.  The  judges  then  observed  that 
the  right  of  contract  is  subject  to  certain  limitations 
which  the  State  may  lawfully  impose  in  the  exercise 
of  its  police  power,  and  stated  that  this  power  had 
been  greatly  extended,  owing  to  the  increase  of  the 


62 


RESPECTING   FREEDOM    OF    CONTRACT. 


number  of  occupations  dangerous  or  detrimental  to 
health,  and  requiring  special  precaution  for  the  well- 
being  of  laborers,  and  stated  that  a  large  discretion 
is  rested  in  the  legislature  to  determine  what  the 
public  interests  require  and  what  measures  are 
necessary  for  such  protection.  The  judges  then  said 
that  this  inherent  power  was  but  sparingly  used  in 
the  United  States  prior  to  the  adoption  of  the  Consti- 
tution because  our  people  were  then  almost  purely 
an  agricultural  people,  and  the  necessity  for  such 
protection  of  particular  classes  did  not  exist.  Profit- 
able employments  like  lotteries  or  the  sale  of  liquors 
were  then  held  to  be  legitimate,  but  are  now  pro- 
hibited or  are  subject  to  stringent  restrictions.  The 
business  of  mining  coal  or  manufacturing  iron,  be- 
fore the  formation  of  the  Constitution,  was  carried  on 
in  such  a  limited  way,  and  by  such  primitive  meth- 
ods, that  special  laws  were  not  held  necessary  for 
the  protection  of  operatives;  but  these  industries 
have  assumed  such  vast  proportions  that  the  safety 
and  health  of  the  laborers  require  special  protection 
against  the  dangers  incident  to  the  employment 
The  court  then  pointed  out  many  instances  of  the 
application  of  the  police  power  to  different  sorts  of 
industries,  buildings,  and  transportation,  in  which 
instances  the  exercise  of  the  power  has  uniformly 
been  held  constitutional.  The  cases  cited  by  the 
court  refer  mostly  to  the  protection  of  life,  but  the 
health  and  morals  of  the  operatives,  say  the  court, 
need  equal  protection,  and  cases  in  that  regard  are 


RESPECTING   FREEDOM    OF    CONTRACT.  63 

cited.  The  judges  then  declared  that  the  Utah 
eight-hour  act  may  be  sustained  as  a  valid  exercise 
of  the  police  power  of  the  State.  It  is  said  that  the 
enactment  does  not  purport  to  limit  the  hours  of  all 
workmen,  but  only  of  those  employed  in  under- 
ground mines  or  the  smelting  of  ores.  It  is  observed 
that  the  legislature  has  adjudged  these  employ- 
ments to  be  detrimental  to  health,  and  so  long  as 
there  are  reasonable  grounds  for  believing  this,  to 
be  so,  the  decision  of  the  legislature  upon  the  sub- 
ject cannot  be  reviewed  by  the  Federal  Court 

The  judges  further  remarked  that  proprietors 
and  operatives  do  not  stand  upon  an  equality  and 
that  their  interests  are  to  a  certain  extent  conflicting: 
and  suggested  that  although  both  parties  are  of  full 
age  and  competent  to  contract,  yet  this  fact  does  not 
necessarily  deprive  the  State  of  the  power  to  inter- 
fere where  the  parties  do  not  stand  upon  an  equality 
or  where  the  public  health  demands  that  one  party 
to  the  contract  shall  be  protected  against  himself. 
The  judges  added  that  the  question  is  in  each  case 
whether  the  legislature  had  exercised  reasonable  dis- 
cretion or  whether  its  action  is  merely  an  excuse  for 
an  unjust  discrimination  or  the  oppression  of  a  par- 
ticular class,  and  cited  cases.^  The  judges  stated 
further  that  they  would  not  criticise  many  authori- 
ties holding  that  State  statutes  restricting  hours 
of  labor  are  unconstitutional. 

1  Barbier  v.  Connolly,  113  U.    113  U.  S.  703;    Tick  Wo  v.  Hop- 
S.  37;     Soon   Hing  v.   Crowley,    kins,  118  U.  S.  356. 


g4  RESPECTING   FREEDOM    OF    CONTRACT. 

Those  State  cases,  decided  by  the  Supreme  Courts 
of  several  of  the  States  proceed  substantially  on  the 
ground  made  in  the  leading  Pennsylvania  case.^ 
That  case  related  to  what  is  called  the  Store-Order 
Act  of  June  29,  1881,  and  which  attempted  to  pre- 
vent persons  of  full  age  from  making  their  own  con- 
tracts, and  on  that  account  the  Pennsylvania  judges 
declared  the  act  unconstitutional  and  void,  and 
stated  that  it  was  an  infringement  alike  of  the  right 
of  the  employer  and  the  employee  and  that  it  was 
more,  that  it  was  an  insulting  attempt  to  put  the 
laborer  under  legislative  tutelage,  which  is  not  only 
degrading  to  his  manhood,  but  is  subversive  of  his 
right  as  a  citizen  of  the  United  States.  The  laborer, 
the  judges  said,  may  sell  his  labor  for  what  he  thinks 
best,  for  money  or  goods,  just  as  his  employer  may 
sell  his  iron  or  coal;  and  a  law  preventing  the  laborer 
from  so  doing  is  an  infringement  of  his  constitutional 
privileges,  and  therefore  vicious  and  void. 

Now,  it  is  to  be  observed  that  the  Federal  Supreme 
judges  place  their  decision  in  the  Utah  case  princi- 
pally upon  the  ground  that  the  eight-hour  law  is  a 
regulation  of  the  public  health;  but  further,  upon 
the  ground  that  the  laborer  is  to  be  protected  from 
his  employer;  while  the  Pennsylvania  judges  de- 
clared that  the  laborer  cannot  be  considered  as  in  a 
state  of  tutelage.  We  certainly  ought  to  notice  in 
this  connection  that  the  wage-workers  in  nearly  all 

2Godcharles      v.      Wigeman,    113  Pa,  St.  431. 


RESPECTING   FREEDOM    OF    CONTRACT.  65 

the  States  form  a  majority  of  the  community,  and 
that  they  are  clothed  with  the  right  of  suffrage  and, 
as  a  matter  of  fact,  the  votes  of  the  wage-working 
class  elect  the  State  legislatures  and  the  President 
of  the  United  States.  It  would  be  certainly  a  remark- 
able development  of  the  police  power  to  say  that  per- 
sons clothed  with  the  elective  franchise  and  held  to 
possess  the  requisite  judgment  to  exercise  that  great 
power  should  also  be  declared  incompetent  to  make 
their  own  contracts  with  regard  to  their  own  labor 
and  with  regard  to  their  own  pay. 

The  Colorado  Supreme  Court  recently  declined  to 
follow  Holden  v.  Hardy,  and  held  the  eight-hour  law 
void,  as  against  the  constitutional  guaranties  of  lib- 
erty and  property.^  This  is  an  example  of  a  State 
Supreme  Court  more  conservative  than  the  Federal 
Supreme  Court,  some  members  of  which  of  late  years 
have  exhibited  populistic  tendencies. 

The  Federal  statutes  with  regard  to  seamen  treat 
them  as  an  improvident  class,  and  it  has  also  been 
considered  that  their  contracts  could  be  regulated 
under  the  power  to  regulate  commerce.^  But  it  sure- 
ly ought  not  to  be  held  that  all  the  laborers  of  the 
United  States  stand  in  need  of  protection  by  law,  as 
a  class,  against  the  rapacity  of  proprietors;  and  it 
would  seem  that  the  reasoning  of  those  judges  who 
have  held  statutes  restricting  freedom  of  contract  as 
to  hours  of  labor,  and  as  to  restriction  of  the  kind 

3  Re  Morgan,  47  L,  R.  A.  52.        4  Robertson    v.    Baldwin,    165 

U.  S.  275. 


66 


RESPECTING    FREEDOM    OF    CONTRACT. 


of  funds  in  whicli  labor  should  be  paid,  to  be  uncon- 
stitutional, took  the  better  view.  Paternalism  in  gov- 
ernment is  always  considered  alien  to  the  spirit  of 
American  institutions,  and  the  very  decided  ten- 
dency of  the  legislatures  to  stretch  the  police  power 
in  this  direction  would  seem  to  require  the  correction 
which  it  has  received  at  the  hands  of  the  judges  of 
the  principal  State  courts.  It  would  also  seem  that 
the  Federal  Supreme  judges  hardly  come  up  to  the 
right  standard  in  that  regiird. 

In  a  Michigan  case  an  act  forbidding  one  liquor 
dealer  to  become  surety  on  the  bond  of  another 
liquor  dealer  was  held  void  as  against  the  provision 
that  no  person  shall  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law.^  That  provision 
is  contained  in  the  constitution  of  Michigan  and 
the  Michigan  judges  also  held  that  the  act  was 
violative  of  the  Fourteenth  Amendment  to  the  Fed- 
eral Constitution.  The  Michigan  judges  stated  that 
the  term  liberty,  as  used  in  the  constitution,  includes 
the  right  of  a  man  to  act  in  such  a  manner  not  in- 
consistent with  the  rights  of  others,  as  his  judgment 
may  dictate,  and  to  make  such  contracts  and  to  pur- 
sue such  callings  as  he  thinks  proper,  with  the  right 
to  contract  a  debt  or  personal  obligation  as  included 
in  the  right  of  liberty;  and  that  this  right  also  is  a 
right  of  property,  and  that  the  right  to  pledge  one's 
estate  is  as  much  a  right  of  property  as  title  or  pos- 

5Kuhii   V.    Detroit,    70   Mich.    534. 


RESPECTING    FREEDOM    OF    CONTRACT.  (J  7 

session.  The  Micbigau  judges  cited  the  opinions 
of  Justices  Field  and  Strong." 

In  this  connection  it  may  be  observed  that  there  is 
a  dissenting  opinion  of  Mr.  Justice  Gray,  which  is 
an  elaborate  argument  that  the  regulation  and  sale 
of  liquors  belongs  to  the  State,  under  the  police 
power,  and  cannot  be  regulated  by  Congress  as  a 
part  of  the  national  system.^ 

Recurring  to  labor  legislation; — ^^there  are  numer- 
ous decisions  connected  with  recent  statutes  prohib- 
iting organizations  to  prevent  competition.  These 
decisions  are  merely  developments  of  the  ancient 
doctrine  that  such  organizations  are  illegal  as 
against  public  policy.  Such  statutes  are  upheld 
upon  that  ground,  except  in  some  cases  where  they 
trench  upon  received  doctrine  relating  to  what  is 
technically  called  restraint  of  trade.  It  is  a  well- 
known  fact  that  the  extensive  employment  of  ma- 
chinery has  not  resulted  in  bettering  the  condition 
of  wage-workers,  but  has  built  up  great  fortunes  for 
employers;  and  the  so-called  public  policy  of  the 
State  in  behalf  of  the  laborer  is  asserted  in  many 
enactments,  passed  in  the  exercise  of  the  police  pow- 
er as  has  been  seen  above,  to  prevent  the  laborer 
from  making  contracts  which  the  legislature  thinks 
prejudicial  to  him.  Slich  laws  regulating  the  rela- 
tions of  employers  and  employees  have  been  the 

sMunn   V.    Illinois,    94   U.    S.        7  Leisy  v.   Hardin,   135   U.   S. 
142;    also  Yick  Wo  v.  Hopkins,    100. 
118  U.  S.  356. 


(58  RESPECTING    FREEDOM    OF    CONTRACT. 

foundation  of  many  decisions.  In  California  an  en- 
actment forbidding  labor  for  more  than  eight  hours 
a  day  was  held  not  sustainable  under  the  police 
power.^  In  West  Virginia  a  law  forbidding  an  em- 
ployer to  sell  supplies  at  a  greater  profit  to  em- 
ployees than  to  others  was  held  void.^  State  vs.  Coal 
Co.,  33  W.  Va.,  188.  In  Illinois  a  law  forbidding 
owners  of  mines  to  pay  their  workmen  by  weight  was 
held  void,  as  interfering  with  freedom  of  contract. 
Some  States  have  forbidden  contracts  for  payment  in 
gold,  but  the  Federal  Supreme  Court  has  sustained 
such  contracts,  which  are  much  in  use.*^  The  State 
of  Missouri  passed  an  act  making  it  unlawful  for  an 
employer  to  prohibit  a  workman  from  joining  or  re- 
maining in  a  labor  union,  under  a  penalty  of  fine  or 
imprisonment.  The  Supreme  Court  of  Missouri  held 
the  statute  void,  and  declared,  as  the  Michigan  court 
declared  in  the  case  above,  that  denying  a  citizen 
the  right  to  make  free  contracts  touching  his  labor 
is  to  deprive  him  of  his  liberty  without  due  process.^* 
The  State  of  Ohio  passed  a  statute  providing  that 
no  railroad  corporation  should  require  from  a  person 
about  to  enter  its  employment  an  agreement  where- 
by such  person  should  waive  the  right  to  damages 
for  personal  injuries.  The  U.  S.  C.  C.  for  the  North- 
era  District  of  Ohio  declared  the  statute  violative  of 
the  Fourteenth  Amendment  and  also  of  the  consti- 

8  Exp.  Culbach,  85  Calif.  274.       J  o  Woodruff  v.  Mississippi,  162 
»  State  V.  Coal  Co.,  37  W.  Va.    U.  S.  291. 
188.  11  State  V.  Julow,  31  S.  W.  R.  781 


RESPECTING   FREEDOM    OF    CONTRACT.  69 

tution  of  Ohio.^-  In  several  of  the  above  cases,  the 
statutes  were  also  held  class  legislation.  All  laws 
must  be  equal  in  their  character  and  uniform 
throughout  the  State  as  to  all  classes  of  persons. 

Some  interesting  decisions  are  found  touching  con- 
tracts of  insurance.  Statutes  enacting  that  the 
amount  of  damages  recoverable  on  a  fire  insurance 
policy  shall  be  the  amount  of  the  policy  have  been 
sustained;  and  the  decisions  are  in  line  with  those 
upholding  the  power  of  Congress  to  enact  forms  of 
contract  for  interstate  carriers.  Judicial  opinions 
also  sustain  what  is  called  the  non-forfeitable  clause 
prescribed  by  statutes  declaring  contracts  void  in 
which  the  insured  has  waived  the  benefit  of  the  non- 
forfeiture provision.  It  is  said  by  the  judges  that 
the  State  controls  the  nature  and  terms  of  the  con- 
tract into  which  the  corporation  may  induce  the  in- 
sured to  enter,  and  that  the  clear  words  of  the  stat- 
ute cannot  be  avoided  and  nullified  by  the  contract 
of  the  parties.  In  other  words,  that  the  State  may 
make  the  contract  for  the  parties.^ ^ 

The  evolution  of  the  law  concerning  freedom  of 
contract  has  been  a  slow  process.  Many  classes  of 
persons,  for  centuries,  were  unable  to  contract 
at  all  at  common  law.  The  nature  of  contract  was 
imperfectly  understood.  Simple  as  it  may  seem  to 
the  present  generation,  the  conception  of  contract 
was  for  ages  immature.    An  example  of  the  enlarge- 

12  Shaver  v.  Penn.  Co.,  71  Fed.  i3  Ins.  Co.  v.  Clements,  140  U. 
931.  S.  226. 


70      RESPECTING  FREEDOM  OF  CONTRACT. 

ment  of  the  freedom  of  contract  is  found  in  the  case  of 
married  women.  By  the  Roman  law,  the  woman  be- 
came subject  to  her  husband  as  if  his  child.  Her 
property  came  to  the  hands  of  her  husband  and  the 
woman  could  make  no  contract  touching  her  prop- 
erty. At  common  law,  the  wife's  personalty  came  to 
the  husband,  who  by  the  marriage  acquired  an  estate 
in  her  lands,  and  husband  and  wife  were  held  one 
person,  to  wit,  the  husband.  In  nearly  all  the  States 
full  power  of  contract  has  now  been  given  to  mar- 
ried women  and  a  vast  mass  of  learning  upon  the 
subject  has  become  obsolete. 

The  development  has  been  exceedingly  slow.  It 
certainly  is  a  backward  step  if  the  State,  under  the 
police  power,  can  disable  great  classes  of  persons 
from  making  contracts,  as  has  been  held  in  some  of 
the  decisions  under  the  so-called  labor  legislation 
referred  to  above.  Contracts  concerning  articles  of 
food  and  fixing  prices  were  regulated  in  England  sev- 
eral centuries  ago.  Prices  of  many  articles  of  per- 
sonal property  were  also  regulated  at  that  early  day. 
Methods  of  manufacturing  were  also  regulated. 
Even  the  prices  of  books  and  the  exchange  of  coin, 
gold  and  silver,  were  fixed  by  law.  Statutes  con- 
cerning the  wages  of  laborers  were  enacted  in  Eng- 
land many  centuries  ago.  Masons,  carpenters  and 
the  like  had  their  wages  fixed  by  law.  Trade  in 
grain,  flour,  cattle,  meal,  and  many  sorts  of  pro- 
visions was  regulated.  Government  was  paternal. 
Under  enactments  now  in  England,  and  under  the 


RESPECTING    FREEDOM    OF    CONTRACT.  71 

decisions  of  the  judges  in  England,  all  this  has  been 
changed,  and  persons  of  full  age  are,  in  England, 
allowed  the  utmost  liberty  of  contract. 

In  the  States  of  this  Union,  there  has  been  no  such 
development,  because  the  freedom  which  was  the 
foundation  of  the  republic  extended  to  all  the  above 
subject  matters,  and  the  recent  statutes  above  re- 
ferred to  in  this  chapter,  and  decisions  sustaining 
them,  making  contracts  for  a  citizen  which  he  would 
not  make  for  himself,  and  forbidding  him  to  make 
contracts  which  he  would  desire  to  make,  are  cer- 
tainly backward  steps.  It  may  be  said  of  the  de- 
cisions in  general  that  the  judges  have  set  aside  leg- 
islation of  the  character  indicated,  and  in  many  of 
the  opinions  the  broadest  language  has  been  used  in 
vindicating  the  constitutional  right  of  every  man  to 
use  his  faculties  and  his  labor  according  to  his  wish. 
The  judges  have  almost  uniformly  decided  against 
the  exercise  of  the  police  power  to  trammel  individ- 
ual rights  of  contract.  Where  contracts  are  made 
in  restraint  of  trade  as  in  the  case  of  the  sale  of  a 
business,  the  courts  will  pass  upon  the  reasonable- 
ness of  the  provisions.^*  The  judges  hold  that  the 
same  freedom  may  be  used  in  disposing  of  the  citi- 
zen's labor  as  in  disposing  of  his  capital  according  to 
his  own  wish. 

14  Diamond  Match  COo  v.  Roeber,  106  N.  Y.  473. 


CHAPTER   V. 

THE    CONSTITUTIONAL  OBLIGATION    OF   EQUAL   PRO- 
TECTION. 

The  equality  clause  of  the  14th  amendment  to  the 
Federal  Constitution  has  received  of  late  years  a 
broader  interpretation  than  was  given  to  it  at  first. 
This  development  of  the  law  by  the  decisions  was 
foreseen  by  the  jurists  who  framed  the  amendment. 
In  the  leading  case,  Mr.  Justice  Miller,  delivering  the 
majority  opinion,  said: 

"We  doubt  very  much  whether  any  action  of  a 
State  not  directed  by  way  of  discrimination  against 
the  negroes  as  a  class  or  on  account  of  their  race  will 
ever  be  held  to  come  within  the  purview  of  this  pro- 
vision."^ 

That  which  is  undoubtedly  the  true  doctrine  has 
been  developed  by  the  decisions  since  the  date  of  the 
above  statement,  and  at  present  undoubtedly  the 
doctrine  is  as  stated  by  Mr.  Justice  Brown: 

"A  majority  of  the  cases  which  have  since  arisen 
have  turned  not  upon  a  denial  to  the  colored  race  of 
rights  therein  secured  to  them  but  upon  alleged  dis- 
criminations in  matters  entirely  outside  of  the  polit- 
ical relations  of  the  parties  aggrieved."^ 

It  is  certainly  true  that  by  far  the  greater  part  of 

1  Slaughter  House  Cases.  16  2  Holden  v.  Hardy,  169  U.  S. 
Wall.  36,  81.  366,  382. 

72 


EQUAL  PROTECTION.  73 

the  very  numerous  cases  under  the  amendment  have 
had  relation  to  the  white  race. 

It  is  a  singular  fact  that  before  the  lith  amend- 
ment was  adopted  in  1868  any  action  of  a  State  de- 
priving a  citizen  of  vested  rights,  or  of  private  prop- 
erty, was  not  justiciable  in  the  courts  of  the  United 
States.  If  the  action  of  the  State  impaired  the  obli- 
gation of  a  contract  then  such  action  was  so  justi- 
ciable, but  not  otherwise,  and  the  adoption  of  the 
14th  amendment  was  a  long  step  in  advance. 

A  classification  of  particular  kinds  of  corpora- 
tions, property,  or  trades,  is  sustained,  provided  it  is 
reasonable  in  the  view  of  the  judges,  and  not  merely 
arbitrary.^  And  a  wide  latitude  is  allowed  to  the 
States  in  respect  of  classification,  without  criticism, 
by  the  Federal  Supreme  Court.* 

In  N.  H.,  an  ordinance  requiring  abutting  owners 
to  keep  the  sidewalks  clear  of  snow  was  held  to  prac- 
tically create  a  tax,  and  not  to  be  sustainable  under 
the  police  power.^ 

The  line  which  divides  the  exercise  of  the  taxing 
power  from  the  exercise  of  the  police  power  is  some- 
times very  slight.  For  example,  where  the  City  of 
Titusville,  Pa.,  had  passed  an  ordinance  for  the  levy 

3  Bank  v.  Boston,  125   U.   S.  S.  194,  238;    Bell's  Gap  R.  R.  v. 

60;    Palmer  v.  MeMahon,  133  U.  Penn.,  134  U.  S.  232;    State  R. 

S.  660;    Crowley  v.  Christensen,  R.  Tax  Cases,  92  U.  S.  575.  612. 

137  U.  S.  86,  91;    Mer.  Bank  v.  *  Clark  v.  Kansas  City,  176  U. 

Penn.,  167  U.   S.  463;    Western  S.  114,  119. 

etc.  Co.  V.  Ind.,  165  U.  S.  304;  "estate  v,  Jackson,  N.  H.  1898. 
Adams  Exp.  Co.  v.  Ohio,  165  U. 


74  EQUAL  PROTECTION. 

and  collection  of  annual  license  taxes,  and  a  manu- 
facturer of  picture  frames  living  in  Chicago  was 
prosecuted  for  a  yiolation  of  the  ordinance,  the  Penn- 
sylvania court  holding  was  that  the  authorization 
and  imposition  of  that  license  was  an  exercise  of  the 
police  power  and  not  of  the  taxing  power;  but  the 
Federal  Supreme  Court  held,  by  Mr.  Justice  Brewer, 
that  the  Federal  court  was  not  bound  by  the  view  of 
the  Pennsylvania  court  upon  that  point,  and  viewed 
the  license  as  a  tax  and  as  void  because  laid  upon 
interstate  commerce.^ 

In  the  so-called  inheritance  tax  cases,  in  the  Fed- 
eral Supreme  Court,  it  was  held  that  a  progressive  in- 
heritance tax  is  not  in  conflict  with  the  14th  amend- 
ment and  that  inheritances  may  be  classified  accord- 
ing to  amount  and  a  different  rate  imposed  upon  the 
several  classes.'^  Such  taxes  are  considered  exactions 
on  the  right  of  succession.^  The  question  of  classifi- 
cation as  to  insurance  companies  has  been  consid- 
ered.^ 

It  is  not  sufficient  that  a  classification  has  been 
enacted  under  the  police  legislation  of  the  State,  but 
it  must  appear  that  it  has  been  based  upon  some 
reasonable  ground  which  bears  a  proper  relation 
to  the  attempted  classification  and  is  not  a  mere  arbi- 
trary selection.    In  a  recent  leading  case  upon  the 

6  Brennan    v.    Titusville,   153  s  u.   S.  v.   Perkins,  163  U.   S. 

U.  S.  789.  625,  628. 

'  Magown  v.  111.  T.  &  S.  Bank,  9  Orient  Ins.  Co.  v,  Daggs,  172 

170  U.  S.  283.  U.  S.  557,  562. 


EQUAL  PROTECTION.  75 

siibjecV  the  legislature  of  Texas  had  passed  an  act 
that  every  person  having  a  claim  respecting  a  rail- 
road for  services  or  damages,  or  other  charges,  or 
stock  killed,  should  present  it  to  the  agent  of  the 
company  nearest  the  point  where  the  claim  arose, 
and  if  the  claim  should  not  be  paid  within  thirty 
days,  might  sue  it  and  recover  an  attorney's  fee  to 
be  assessed  by  the  court  or  jury,  in  addition  to  all 
other  reasonable  attorney's  fees.  The  judges  held 
that  this  statute  operated  to  deny  to  the  railroad 
company  the  equal  protection  of  the  law,  in  that  it 
singled  out  the  company  from  all  citizens  and  cor- 
porations and  required  them  to  pay  attorney's  fees 
to  parties  successfully  suing,  while  the  company  was 
given  no  corresponding  benefit.  The  judges  said  that 
the  statute  simply  imposed  a  penalty  upon  a  railroad 
corporation  for  a  failure  to  pay  certain  debts,  with- 
out punishing  any  individual  citizen  or  any  other 
kind  of  corporations  in  the  same  way.  "The  act," 
said  the  judges,  "singled  out  a  certain  class  of  debt- 
ors and  punished  them,  when  for  the  same  delin- 
quency they  punished  no  others;  consequently,  the 
railroad  does  not  stand  equal  before  the  law  or  re- 
ceive the  equal  protection  of  the  law."  Corporations 
are  persons  within  the  provisions  of  the  14th  amend- 
ment.   The  judges  referred  to  a  Missouri  case,^^  mak- 

10  Gulf  etc.  Ry.  v.   Ellis,  165    cited,    distinguishing   the    Gulf 
U.  S.  150.   But  see  Atchison  etc.    etc.  cases:    174  U.  S.  96. 
Ry.    V.    Matthews,    and    cases       n  State    v,    Loomis,    115    Mo. 

?07. 


(^g  EQUAL   PROTECTION. 

ing  it  a  misdemeanor  for  a  manufacturing  or  mining 
corporation  to  pay  wages  in  any  paper  payable  other- 
wise than  in  lawful  money.  The  Missouri  court  held 
that  this  statute  was  class  legislation  and  void;  and 
that  while  the  legislature  may  fix  the  rate  at  which 
persons  may  contract,  it  cannot  declare  that  compe- 
tency to  contract  can  be  dependent  upon  arbitrary 
facts.  In  Pennsylvania  a  law  fixing  a  per  diem  tax 
on  employees  for  any  unnaturalized  person  in  their 
employ,  the  same  to  be  deducted  from  his  wages,  was 
declared  vicious  legislation.^ ^  In  Tennessee,^^  the 
judges  said  that  if  a  law  which  attacks  individual 
rights  be  partial  or  private,  it  is  unconstitutional 
and  void,  because  otherwise,  the  mass  of  the  com- 
munity might  be  governed  by  one  law  and  unpopu- 
lar individuals  and  corporate  bodies  by  another.  The 
Federal  Supreme  Court  judges  have  said  in  the  above 
case  that  a  mere  statute  to  compel  the  payment  of 
debts  does  not  come  within  the  scope  of  police  regu- 
lation. In  Alabama,  a  statute  provided  that  if  a 
railroad  corporation  should  take  an  appeal  from  a 
justice  and  fail,  it  should  be  liable  for  an  attorney's 
fee,  and  the  Alabama  judges  held  the  statute  against 
the  14th  amendment  and  against  the  constitution 
of  Alabama,  because  justice  cannot  be  sold  or  denied 
by  the  exaction  of  a  consideration  for  its  enjoyment 
from  one  citizen  when  justice  is  given  freely  to  an- 


12  Juniata  Limestone   Co.    v.       13  Vanzant  v.  Waddell,  2  Yer- 
Fagley,  187  Penn.  193.  ger,  260. 


EQUAL  PROTECTION.  77 

other  without  consideration.  "The  statute,"  the 
judges  said,  "was  partial  and  unequal  and  discrim- 
inatory and  against  the  general  law  of  the  land." 
The  judges  said  that  a  law  which  would  require 
farmers  who  raise  cotton  to  pay  a  fee  in  cases  where 
cotton  is  the  subject  matter  of  the  litigation,  would 
be  clearly  discriminating  and  unconstitutional.^*  In 
like  manner,  the  judges  of  Mississippi  said  that  all 
litigants  must  be  regarded  with  equal  favor  by  the 
law  and  have  the  same  right  of  appeal  with  others 
similarly  situated.*^  A  statute  of  Michigan  author- 
ized the  taxing  of  an  attorney's  fee  of  |25  in  actions 
against  a  railroad  company  to  recover  damages  for 
cattle,  and  the  judges  of  that  State^^  declared  that 
corporations  have  equal  rights  with  natural  persons 
in  the  courts  and  may  sue  and  defend  the  same  as 
natural  persons  and  with  the  same  equality  and  jus- 
tice. "The  statute,"  said  the  judges,  "proposed  to  pun- 
ish railroad  companies  for  defending  suits  brought 
against  them  by  compelling  them  to  pay  a  penalty 
of  |25  for  a  failure  to  successfully  maintain  this  de- 
fense; and  calling  a  penalty  an  attorney's  fee  does  not 
change  its  nature  or  affect  it  as  a  punishment  against 
the  company  and  a  reward  to  the  plaintiff  and  an  in- 
centive to  litigation  on  his  part.  The  inequality  and 
injustice  of  this  statute  cannot  be  sustained  upon 

1*  S.  Ala.  R.  R.  V.  Morris,  64        le  Wilder  v.  C.  &  W.  M.  R.  R., 
Ala.  193.  70  Mich.  382. 

15  Chi.  R.  R.  V.  Moss,  60  Miss. 
641. 


r^g  EQUAL   PROTECTION. 

any  principle."  Another  statute  of  Michigan  re- 
quired railroad  corporations  to  sell  so-called  family 
tickets.  The  Federal  Supreme  Court  held  the  law 
void,  as  taking  property  without  due  process  and  de- 
nying equal  protection.^ '^  The  Supreme  judges  of  Ar- 
kansas held  substantially  the  same  as  above  respect- 
ing penalties.^ ^  A  statute  of  Illinois  which  prohib- 
ited persons  engaged  in  mining  or  manufacturing 
from  keeping  a  supply  store  for  their  employees,  was 
held  to  deny  equal  protection.^ °  A  statute  of  Illinois 
prohibiting  barbers,  and  barbers  only,  from  keeping 
their  shops  open  on  Sundays,  was  held  to  deny  equal 
protection  of  the  law,^^  although  a  similar  law  was 
sustained  in  Michigan  upon  the  ground  that  it  was 
a  regulation  of  health,  because  it  is  injurious  to 
health  to  labor  more  than  six  days  in  the  week.^^  The 
Federal  Supreme  Court  held  recently  that  a  statute 
prohibiting  labor  on  Sunday,  excepting  works  of 
necessity,  or  charity,  and  providing  that  the  work 
of  barber  shops  should  not  be  deemed  the  latter,  did 
not  exceed  the  limit  of  the  police  power  of  the  State; 
and  many  English  and  American  cases  are  cited 
throwing  light  on  the  proviso.-^  The  Supreme  judges 
in  Michigan  said  that  an  act  limiting  the  recovery  in 

17  Lake  etc.   R.   R.   v.   Smith,       20  Eden  v.  People,  161  111.  296. 
173  U.  S.  684,  688,  699.  21  People  v.    Bellet,    99   Mich. 

18  St.  Louis  Ry.  v.  Williams,    151. 

49  Ark.  492.  22  Petit  v.  Minn.,  U.  S.  S.  C. 

19  Froor   v.     People,    141    111.    1900. 
177. 


EQUAL  PROTECTION.  79 

libel  suits  in  certain  cases  to  actual  damages  as  de- 
lined  in  the  act,  denies  equal  protection.-^  In  Maine, 
the  judges  held  that  a  statute  providing  that  no  dam- 
ages for  injury  by  defects  in  highways  should  be  re- 
covered by  any  person  who  was  a  resident  of  any 
country  where  damage  done  under  similar  circum- 
stances was  not  allowed  by  the  law  of  that  country, 
denied  equal  protection  of  the  laws.-^ 

Equal  accommodation  on  railroads  is  not  denied 
where  separate,  but  equally  good  cars  are  furnished 
for  white  and  colored  citizens.-''  A  State  board  of 
education  may  provide  a  high  school  for  whites  and 
not  for  colored  persons,  as  the  education  of  the  peo- 
ple is  a  matter  wholly  belonging  to  the  State;  and 
such  provision  is  not  a  denial  of  equal  protection.^^ 
In  Pennsylvania,  a  statute  provided  that  a  greater 
license  fee  should  be  exacted  from  non-residents  than 
from  residents  for  the  privilege  of  purchasing  prod- 
uce in  a  county  to  be  shipped  out  of  it;  and  the 
judges  said  that  this  statute  did  not  deny  the  equal 
protection  of  the  laws.^''^  But  the  Kentucky  judges 
held  the  contrary.^^  In  Illinois,  a  statute  which  pro- 
vided that  none  but  citizens,  or  those  who  had  de- 
clared their  intentions,  should  be  employed  upon  the 


23  Park  V.  Free  Press  Co.,  72  20  Cumming  v.  Board  of  Ed., 
Mich.  560.  175  U.   S.   528. 

24  Pierson     v.     Portland,     69  27  Rothermel  v.   Meyerle,   136 
Maine  278.  Penn.  250. 

23  Britton  v.  Atlanta  R.  R.,  88  2s  Fechheimer  v.  Louisville,  84 

N.  C.  536.  Ky.  306. 


80  EQUAL  PROTECTION. 

public  works  wast.  held  by  the  judges  not  to  deny 
equal  protection.^^ 

Statutes  regulating  the  right  to  practice  the  pro- 
fession of  medicine  and  other  professions,  but  allow- 
ing the  right  to  all  who  have  the  qualifications  pre- 
scribed, do  not  deny  equal  protection.^^  People  vs. 
Phippen,  70  Mich.,  6;  State  vs.  Green,  112  Ind.,  462. 
But  if  such  a  statute  discriminates  between  persons 
engaged  in  the  same  profession  or  against  citizens  of 
other  States,  then  equal  protection  is  denied,  as  is 
declared  by  the  judges  of  New  Hampshire.^^ 

Where  a  law  of  Massachusetts  required  domestic 
corporations  to  pay  into  the  treasury  a  certain  por- 
tion of  dividends  declared  upon  shares  of  non-resi- 
dent owners,  it  was  held  that  the  equal  protection  of 
the  laws  was  denied,  because  the  citizens  of  each 
State  are  entitled  to  all  the  immunities  of  the  citi- 
zens of  the  several  States.^^  The  judges  of  Indiana 
said  that  no  discrimination  can  be  made  by  law  be- 
tween resident  citizens  and  others  as  to  the  right  of 
action  for  wrongfully  causing  death.^^ 

The  general  principle  is  that  equal  protection  is 
not  denied  where  the  law  operates  alike  upon  all 
persons  and  upon  all  property  similarly  situated.^^ 


29  People  V.   Nelson,  133  Illi-  32  Oliver  v.  Washington  Mills, 
nois  565.  11  Allen,  268. 

30  People  V.  Phippen,  70  Mich.  33  Jeffersonville    Co.    v.    Hen- 
6;    State  v.  Green,  112  Ind.  462.  dricks,  41  Ind.  48;    Blake  v.  Mc- 

31  State  V.  Hinman,  65  N.  H.  Clung,  172  U.  S.  239. 

103.  34Wallston  v.   Nevin,  128  U. 


EQUAL  PROTECTION.  81 

Legislation  does  not  deny  equal  protection  if  all  per- 
sons subject  to  it  are  treated  alike.^^  It  was  said  by 
the  Supreme  Court  that  the  Fourteenth  Amendment 
does  not  limit  the  police  power  of  the  States  when  its 
exercise  affects  alike  all  who  are  similarly  situated, 
but  does  forbid  ordinances  of  the  city  against  wash- 
ing in  public  laundries  within  certain  portions  of  the 
city  during  certain  times.^^  Drainage  assessments 
which  apply  to  all  lands  of  the  same  kind  do  not 
deny  the  equal  protection  of  the  laws.^*^  Nor  does  a 
statute  which  gives  miners  a  lien  upon  mines  para- 
mount to  all  other  liens  except  taxes.^^  The  judges 
of  New  Jersey  held  that  a  statute  imposing  heavier 
penalties  upon  non-residents  than  upon  residents  for 
violation  of  game  laws  does  not  deny  them  equal  pro- 
tection of  the  laws.^^  In  North  Carolina,  a  statute 
subjected  railway  officers  to  indictment  for  not  pay- 
ing or  arbitrating  for  cattle  killed  and  made  the  fact 
of  the  killing  evidence  of  negligence,  and  the  judges 
said  that  that  statute  was  unconstitutional  because 
it  denied  equal  protection.  But  statutes  making  rail- 
road companies  liable  to  an  employee  for  the  negli- 

S.  578;    Barbier  v.  Connolly,  113  ing,   198;     Chr-isman  v.    Brook- 

U.  S.  32.  haven,  70  Miss.  477;    Tinsley  v. 

35  Minn.  Co.  v.  Herrick,  127  U.  Anderson,  171  U.  S.  101. 

S.  210;   Hayes  v.  Mo.,  120  U.  S.  36  Barbier  v.  Connolly,  113  U. 

68;    Ky.  R.  R.   Tax  Cases,  115  S.  32. 

U.  S.   321;    Hallinger  v.  Davis,  37  vVurts  v.  Hoagland,  114  U. 

146  U.  S.  314,  321;     Mo.  Ry.  v.  S.  606. 

Mackay,  127  U.  S.  205,  207;  Pies-  as  Warren    v.    Sohn,    112    Ind. 

sy  V.   Ferguson,   163   U.   S.   537,  213. 

550;    Roberts  v.  Boston,  5  Cush-  39  Allan  v.  Wickoff,   40  N.  J. 

Law  90. 


32  EQUAL  PROTECTION. 

gence  of  a  co-employee  are  sustainable,^^  and  are  lib- 
erally eonstrued.^^  Where  a  foreign  corporation  does 
business  in  a  State  under  license,  the  State  may,  un- 
der the  police  power,  change  the  condition  of  the 
license  without  denying  equal  protection  of  the  law.^- 
Where  the  statute  does  not  deny  to  persons  or  classes 
of  persons  the  same  protection  which  is  enjoyed  by 
other  persons  or  other  classes,  in  the  same  place  or 
under  like  circumstances,  it  is  sustainable  under  the 
Fourteenth  Amendment  as  to  equality.^^  No  im- 
pediment can  be  interposed  to  the  pursuits  of  any 
persons  unless  applied  to  the  same  pursuits  of  others 
under  similar  circumstances;  and  no  greater  bur- 
dens can  be  laid  upon  one  than  are  laid  upon  others 
in  the  same  calling  and  condition.  Thus,  the  anti- 
department  store  law  of  Missouri,  which  provided 
that,  in  cities  of  fifty  thousand  population,  certain 
enumerated  kinds  of  goods  should  not  be  sold  in  the 
same  building,  under  a  unit  of  management,  was 
held  to  create  a  purely  arbitrary  distinction  and 
to  be  void.^^  In  Indiana  it  is  declared  that  a 
statute  prohibiting  any  person  not  a  bona  fide 
resident  of  the  State  of  Indiana  to  act  or  be  ap- 
pointed as  a  trustee  under  any  instrument  in  writing 
violated  the  constitutional  obligations  for  equal  pro- 

40  Minn.  R.  R.  v.  Herrick,  127  ^s  Missouri  v.  Lewis,  101  U.  S. 
U.  S.  210.  22. 

41  Vetaloro  v.  Perkins,  101  Fed.  44  state  v.  Ashbrook,  55  S.  W. 
393.  R.  642. 

42  Phil.    Fire   Ass'n  v.   N.    Y., 
119  U.  S.  110. 


EQUAL  PROTECTION.  83 

tection.*^  The  same  conclusion  was  reached  by  U. 
S.  Circuit  Judge  Gresham.^^  The  judge  said  that  the 
statute  was  a  plain  discrimination  against  the  citi- 
zens of  another  State,  and  that  if  the  statute  could 
be  sustained,  it  would  prohibit  citizens  of  other 
States  from  holding  property  and  doing  business 
within  the  State.  The  judges  of  Indiana  also  reached 
similar  conclusions  in  another  case.^'''  They  declared 
railway  corporations  to  be  persons  under  the  Four- 
teenth Amendment,  as  the  Federal  Supreme  Court 
had  frequently  declared,  and  as  very  few  of  the  State 
Supreme  Courts  have  denied.^^  They  also  declared 
that  a  railroad  company  is  not  denied  the  equal  pro- 
tection of  the  laws  in  the  assessment  of  its  property 
because  original  jurisdiction  of  the  assessment  and 
valuation  is  given  to  a  State  Board  of  Tax  Commis- 
sioners, instead  of  being  given  in  the  first  instance 
to  a  County  Board,  as  in  the  case  of  other  property, 
with  the  right  of  appeal  to  the  State  Board.  They 
announced  the  principle  that  a  law  which  applies 
alike  to  all  persons  under  like  circumstances  and 
conditions  does  not  deny  to  any  the  equal  protection 
of  the  laws.  The  judges  in  Illinois  considered  a  stat- 
ute of  1889,  restricting  to  a  designated  class  of  per- 
sons the  right  to  recover  attorney's  fees  in  suits  for 
wages,  and  held  that  such  restrictions  did  not  render 

«Roby  V.  Smith,  131  Ind.  47  c.,  C,  C.  &  St.  L.  R.  R. 
342.  V.  Backus,  133  Ind.  513. 

46  Farmers'  L.  &  T.  Co.  v.  Chi.  4n  Covington  etc.  Co.  v.  Sand- 
R.  R.,  27  Fed.  146.  ford,  164  U.  S.  592;    and  cas.  cit. 

by   Mr.   Justice   Harlan. 


g^  EQUAL  PROTECTION. 

the  statute  obnoxious  to  the  constitutional  obliga- 
tion concerning  equal  protection,  because  they  apply 
to  all  persons  in  the  State  similarly  engaged;  and 
that  the  statute  did  not  constitute  special  legislation. 
They  said  that  all  persons  who  bring  such  actions 
fall  within  the  provisions  of  the  statute  and  hence 
the  statute  is  in  no  sense  special  legislation. 

A  law  of  a  State  under  the  police  power  may  be 
impartial  on  its  face,  and  yet  may  be  so  administered 
as  to  operate  a  denial  of  equal  justice.^^  Yick  Wo  vs. 
Hopkins,  118  U.  S.,  356,  373.  But  the  possibility  of 
mal-administration  is  not  enough.  This  is  so  held 
in  regard  to  the  Constitution  of  Mississippi  and  vot- 
ing under  it  by  persons  of  the  negro  race.^^ 

49  Yick  Wo  V.  Hopkins,  118  U.  '><>  Williams  v.  Mississippi,  170 
S.  356,  373.  U.  S.  213,  219. 


CHAPTER    VI. 

THE  STATE  POLICE  POWER  AS  TO  PUBLIC  HEALTH  AND 

SAFETY. 

There  has  been  little  contrariety  of  opinion  among 
the  judges  with  reference  to  the  subject  of  this  chap- 
ter. This  subject  seems  to  be  considered  in  all  the 
judicial  opinions  as  especially  within  the  police  pow- 
er and  not  in  any  way  to  be  parted  with  under  any 
circumstances.  Everything  injurious  to  public 
health  may  be  controlled  by  statute.  Also,  things 
may  be  controlled  which,  when  used  in  a  lawful  man- 
ner are  subjects  of  property  and  of  commerce,  but 
are  capable  of  being  so  used  as  to  be  injurious  to 
health  or  morals.  The  manufacture  and  keeping  on 
sale  of  such  things  may  be  regulated  by  ctatute.  In- 
toxicating liquors  have  been  especially  considered 
as  subject  to  regulation  as  a  business  attended  with 
injury  to  the  community,  and  statutes  may  prohibit 
the  manufacture  and  sale  of  liquor,  although  the 
buildings  were  erected  and  equipped  and  used  for 
such  purposes  prior  to  the  enactment  of  the  regu- 
lating statute  and  at  a  time  when  the  business  was 
lawful.^      The    decisions    are    that    compensation 

1  Mugler  V.  Kansas,  123  U.  S.  18  Wall.  129;  Beer  Co.  v.  Mass.» 
623;     see  Bartemeyer   v.   Iowa,    97  U.  S.  25. 

85 


gg  PUBLIC    HEALTH    AND    SAFETY. 

cannot  be  allowed  in  such  cases  under  the 
police  power  —  that  in  such  cases  private 
property  cannot  be  said  to  be  taken  for  pub- 
lic purposes.  Where  property  is  taken  in  that 
way  for  the  public  health  and  safety,  in  general  it 
cannot  be  taken  without  compensation,  and  there  is 
no  distinction  between  the  power  of  eminent  domain 
and  the  police  power  in  this  regard.  The  police  pow- 
er restricts  the  use  and  enjoyment  of  property;  the 
power  of  eminent  domain  promotes  the  public  wel- 
fare by  taking  away  property  from  the  owners  and 
applying  it  to  some  public  use.  Prohibitory  liquor 
laws  have  been  universally  upheld  and  sustained 
under  the  police  power  in  the  several  States;  but,  as 
already  observed,  there  cannot  be,  under  this  power, 
the  appropriation  of  property  without  compensation 
for  public  health  or  safety.  For  example,  for  the  pur- 
pose of  constructing  drains  through  lands  without 
the  consent  of  the  ow^ners.-  The  public  authorities, 
as  an  illustration  of  this,  cannot  erect  a  dam  on  pri- 
vate property  without  the  consent  of  the  owner  for 
the  purpose  of  abating  a  nuisance  which  exists  on 
adjacent  land.^  The  State  may  prohibit  bringing 
■within  its  borders  animals  having  infectious  diseases 
or  articles  of  propei-ty  injurious  to  health  and 
safety. 

Where  this  rule  impinges  upon  Federal  power  over 

2  Matter  of  Cheseborough,  78  3  Cavanaugh  v.  Boston,  139 
N.  Y.  332;  Stoudinger  v.  New-  Mass.  426;  Vick  v.  Rochester, 
ark,  1  Stew.  Eq.  446.  46  Hun.  607. 


PUBLIC    HEALTH    AND    SAFETY.  87 

commerce  is  considered  in  another  place.^  An  act 
prohibiting  the  transportation  of  natural  gas 
through  pipes  at  a  greater  pressure  than  300  pounds 
to  the  square  inch  or  otherwise  by  its  natural  flow 
was  held  a  valid  exercise  of  the  police  power  as  a 
regulation  of  the  use  of  a  species  of  property  injuri- 
ous in  its  character.^  Where  Congress  enacted 
that  it  should  be  punishable  to  offer  for  sale  petro- 
leum oil  for  illuminating  purposes,  inflammable  at 
a  less  temperature  or  fire  test  than  110  degrees  Fahr- 
enheit, the  judges  declared  that  such  a  police  regula- 
tion related  to  the  internal  trade  of  the  State,  and 
was  wholly  within  the  police  power  of  the  States,  and 
beyond  the  competency  of  Congress.®  Police  power 
in  respect  to  health  and  safety  is  very  commonly 
conferred  by  the  legislature  of  the  State  upon  mu- 
nicipalities. These  municipalities  are  regarded  as 
subordinate  legislative  and  administrative  bodies. 
They  can  exercise  no  powers  but  those  derived  from 
the  act  under  which  they  exist  or  such  as  are  neces- 
sary to  the  performance  of  a  power  expressly  con- 
ferred. The  judges  declare  with  respect  to  such 
municipalities  that  they  cannot  abdicate  their  legis- 
lative powers  nor  create  monopolies  nor  bargain 
away  their  legislative  discretion.  Accordingly,  where 
a  municipal  authority  made  a  contract  with  refer- 
ence to  a  market  house,  fixing  certain  conditions, 


4  La.  V.  Texas,  176  U.  S.  1.  Co.,  28  N.  E.  Rep.  76. 

5  Jamieson  v.  N.  Y.  Gas  &  Oil       e  u.  S.  v.  DeWitt,  9  Wall.  41. 


38  PUBLIC    HEALTH    AND    SAFETY, 

and  providing  that  there  should  be  no  other  public 
market  house  within  the  municipality  for  ten  years, 
the  judges  said  that  the  contract  tended  to  divest  the 
corporation  of  a  part  of  its  legislative  authority  and 
to  create  a  monopoly  in  favor  of  the  contractor^  The 
principle  declared  in  this  case  is  hardly  consonant 
with  the  sustaining  of  the  monopoly  in  the  Slaughter 
House  cases,  to  w^hich  attention  is  directed  in  an- 
other place.  The  general  principle  is  that  it  is  not 
in  the  power  of  a  common  council  to  bind  its  legis- 
lative capacities  by  any  arrangements  or  stipulation 
so  as  to  disable  itself  from  enacting  any  law  that 
might  be  deemed  essential  for  the  public  good. 
State  legislative  powers  are  continuing  and  inalien- 
able.^ Sewers  and  waterworks  are  held  by  the  judges 
to  be  the  private  property  of  municipalities,  in  which 
property  the  people  of  the  State  are  not  interested, 
as  they  are  in  the  streets  and  public  highways,^  No 
exclusive  privileges  or  franchises  can  be  granted  by 
the  municipalities  unless  the  State  has  conferred 
that  power,^^  All  powers  granted  to  municipalities 
must  be  reasonably  exercised  and  such  powers  are 
not  unlimited.    This  is  a  principle  well  established.^* 

•?  Gale  V.  Kalamazoo,  23  Mich,  165;    Cincinnati  v.  Cameron,  33 

344.  Ohio  St.  336. 

8  Britton  v.  Mayor,  21    How.  lo  Omaha  etc.  Co.  v.  Cable  etc. 
251;   Goszler  v.  Corp.  of  George-  Co.,  30  Fed.  324;    Gas  Light  Ca 
town,  6  Wheat.   593;     see  also  v.  Saginaw,  28  Fed.  539. 
Walsh  V.  Bowen,  103  Ind.  257;  n  Welch  v.  Stowell,  2  Doug., 
Milhau  V.  Sharpe,  27  N.  Y.  622.  Mich.,  332;    Morse  v.  Worcester, 

9  Detroit    v.    Corey,   9    Mich.  139  Mass.  389;    Self ert  v.  Brook- 

lyn, 101  N.  Y.  136. 


PUBLIC    HEALTH    AND    SAFETY.  89 

Where  a  power  is  given  in  general  terms,  as  for  in- 
stance to  abate  nuisances,  it  will  be  implied  that  the 
legislature  intended  this  power  to  be  exercised  in 
the  enactment  of  laws  of  general  application  and  not 
bj  dealing  with  particular  enterprises  or  establish- 
ments. Because  an  unlimited  power  of  ^at  charac- 
ter would  place  all  the  property  within  t!ie  State  at 
the  uncontrolled  and  arbitrary  will  of  the  temporary 
local  authorities,  as  was  said  by  Judge  Campbell  of 
Mississippi.^  2  All  ordinances  must  be  general  and 
impartial  and  not  discriminating  in  their  operation, 
say  the  judges.*^  Instances  of  the  exercise  of  police 
power  concerning  health  are  afforded  in  the  case  of 
infectious  diseases,  removal  of  persons  and  articles, 
warrants  for  disinfection,  compulsory  vaccination,^* 
registration  of  vital  statistics,  removal  of  nuisances, 
summary  abatement  of  them,  cleansing  and  draining 
of  unwholesome  places,  prohibiting  of  offensive 
trades,  and  the  like,  all  of  which  the  judges  declare 
to  be  properly  within  the  exercise  of  the  police  povrer 
in  this  regard;  and  the  modern  cases  go  very  far  in 
sustaining  ordinances  and  powers  which  trench  ap- 
parently upon  private  rights.  Where  there  is  an 
actual  infringement  of  private  right,  the  boards  of 
health  may  be  liable  to  the  individuals  injured. 
Members  of  boards  may  be  protected  as  quasi-judi- 
cial  officers   under   some   circumstances   and   may 

12  Lake  v.  Aberdeen,  57  Miss.    221;    Exp.  Chin  Yan,  60  Cal.  79. 
260,  263.  14  Morris  v.  Columbus,  104  Ga. 

13  Com.     V.    Patch,    97    Mass.    792. 


90  PUBLrC    HEALTH    AND    SAFETY. 

justify  under  legislative  statutes  and  city  ordi- 
nances and  under  the  exercise  of  discretionary  pow- 
ers not  arbitrarily  used.^^  Reasonable  use  by  the 
owner  of  his  property  may  turn  on  the  question  of 
injury  to  others.^^  The  motive  or  intent  of  the 
party  is  immaterial.^ ''^  Acts  which  otherwise  would 
be  nuisances  may  be  justified  under  express  statutes; 
but  these  are  strictly  construed.^^  An  instance  of 
this  principle  is  found  in  the  declaration  of  the 
judges  of  the  Federal  Supreme  Court  in  Fertilizing 
Co.  vs.  Hyde  Park,^''  which  is  noticed  in  another 
place.  Under  such  statutes,  nothing  is  to  be  taken, 
as  conceded,  except  what  is  given  by  unmistakable 
terms  or  by  implications  equally  clear.  It  is  per- 
fectly well  settled  by  the  judges  that  the  legislature 
or  the  municipalities  may  declare  things  to  be  nuis- 
ances which  otherwise  would  not  be  such.^^  The 
exercise  of  the  legislative  discretion  in  such  cases, 
the  judges  hold  to  be  conclusive,  particularly  with 
reference  to  all  acts  prohibiting  the  manufacture 
and  sale  of  intoxicating  liquors.  The  citizen  may 
adopt  and  follow  such  pursuits  as  he  likes  not  in- 
jurious to  the  community.    At  the  same  time,  this 

15  Fischer  v.  Boston,  104  Mass,  is  Cogswell  v,  N.  Y.  C.  R.  R., 

87;    Smith  v.  Rochester,  76  N.  103  N.  Y.  10. 

Y.  506;  Elliott  v.  Phila.,  75  Pa.  le  97  U.  S.  659. 

St.  347.  20  Mugler  v.  Kansas,  123  U.  S. 

leHurlburt     v.     McCune,     55  623;     Powell  v.   Penn.,   114   Pa. 

Conn.  31.  St.  265;    Beer  Co.  v.  Mass.,  97 

iTRadcliffe  v.  Mayor,  4  N,  Y.  U.  S.  25;    Miller  v.  Horton,  152 

195;  Fletcher  v.  Rylands,  L.  R.  Mass.  540. 
1  Exch.  263. 


PUBLIC    HEALTH    AND    SAFETY.  91 

right  is  subject  to  such  reasonable  conditions  as 
the  State  in  the  exercise  of  the  police  power  may 
deem  essential  to  the  health  and  safety  and  morals 
of  the  community.^^  The  judges  in  the  different 
cases  merely  apply  the  maxim  that  each  individual 
must  so  conduct  himself  in  his  calling  and  in  the 
use  of  his  property  as  not  to  injure  others.  The 
States,  consequently,  have  been  in  the  habit  of  estab- 
lishing certain  restrictions  upon  certain  kinds  of 
business.  These  restrictions  are  subject  to  the  de- 
termination of  the  judges  as  to  their  reasonable 
character.  Regulations  for  certain  classes  of  per- 
sons and  certain  dangerous  occupations  and  certain 
skilled  trades  are  in  constant  use  in  the  different 
States.  Licenses  are  sometimes  employed  and  up- 
held by  the  judges  as  means  of  regulation.  The 
legislation  is  sustained  by  the  judges  which  prohibits 
sales  of  oils  for  illuminating  purposes  unless  con- 
forming to  a  proper  test,  although  the  process  may 
have  been  patented.^-  So,  the  sale  of  any  pistols 
except  such  as  are  used  in  the  army  and  navy  may 
be  prohibited  by  statute. ^^ 

The  application  of  the  police  power  to  the  regula- 
tion of  business  in  the  interest  of  public  health  and 
safety  are  innumerable,  and  the  judges  declare  new 
instances  of  such  applications  to  be  sustainable,  sub- 

21  Butchers'     Union     Co.     v.  22  Patterson  v.   Ky.,  97  U.  S. 

Crescent  City  Co.,  Ill  U.  S.  744;  501. 

Crowley  v.  Christensen,  137  U.  23  Dibbs  v.  State,  39  Ark.  353. 
S.  86. 


92  PUBLIC    HEALTH    AND    SAFETY. 

ject  to  the  test  of  reasonableness  to  be  applied  by 
the  judicial  tribunals.  That  is  to  say,  the  legislature 
cannot  destroy  or  drive  out  particular  trades  or  oc- 
cupations under  the  mere  suggestion  that  they  are 
harmful.  For  example,  an  ordinance  making  it  an 
offense  to  carry  on  a  public  laundry  within  the  habit- 
able portion  of  a  city  cannot  be  sustained.^*  Per- 
haps, the  most  conspicuous  instance  of  judicial 
declaration  upon  this  subject  is  in  the  strong  opinion 
of  Mr,  Justice  Matthews.^^  There  it  was  held  that  an 
ordinance  which  by  its  practical  administration 
makes  an  unfair  discrimination  without  regard  to 
the  competency  of  the  individual  or  the  propriety  of 
the  place  selected  for  the  carrying  on  of  the  business 
cannot  be  sustained.-^  Licenses  when  used  for  regu- 
lation are  not  in  any  sense  contracts.  A  license  is 
a  mere  permit  which  may  be  revoked  at  any  time  or 
to  which  new  conditions  may  be  attached.  Employ- 
ments affecting  the  public  health  and  safety  are 
almost  uniformly  subjected  to  licenses;  such  em- 
ployments as  those  of  bakers,  dealers  in  rags,  meats 
and  provisions,  milk,  liquors,  explosives,  iDatent  med- 
icines and  the  calling  of  hawkers,  itinerant  medical 
practitioners,  market  men,  plumbers,  scavengers, 
street  musicians  and  so  forth,  and  the  cases  are  very 
numerous.    Skilled  trades  are  very  commonly  regu- 

24  Stockton  Laundry  Case,  26       26  See  also  Matter  of  Lee  Sing, 
Fed.  611.  43  Fed.  359. 

25  Tick  Wo  V.  Hopkins,  118  U. 
S.  336. 


PUBLIC    HEALTH    AND    SAFETY.  93 

lated  and  the  regulations  are  sustained  by  the 
judges.  For  example,  it  is  usual  for  the  State  to 
provide  by  law  that  no  person  shall  be  employed 
as  an  engineer  by  railroads,  who  cannot  read  the 
printed  time  tables  or  handwriting,  and  to  require 
that  public  transportation  companies  shall  refuse 
employment  to  all  persons  who  use  liquor.  So,  also 
persons  who  cannot  distinguish  colors,  or  are 
afflicted  with  what  is  called  color  blindness  are  for- 
bidden to  be  employed. 

The  sale  of  unwholesome  food  was  an  offense  at 
the  common  law  and  has  been  forbidden  very  gener- 
ally by  legislation  under  the  police  power  of  the 
States.  Regulations  upon  this  subject  forbidding 
such  food  to  be  bought  or  sold  are  uniformly  sus- 
tained by  the  courts.  Sometimes  regulations  made 
by  the  State  conflict  with  the  Federal  power  over 
commerce,  a  subject  which  is  treated  in  another 
place.  If  such  regulations  simply  affect  interstate 
commerce  incidentally,  they  will  not  be  held  in- 
valid.^^  The  kindred  subject  of  water  supply  has 
led  to  much  legislation.-^  Adulteration  of  food  is 
prohibited  under  the  police  power  and  statutes  are 
upheld  preventing  fraud  and  deception  in  regard  to 
food  and  dairy  products.  Some  of  these  statutes 
and  decisions  concerning  them  are  considered  in  an- 
other place.^^     The  right  to  establish  public  mar- 

2T  Burrows  v.  Delta  etc.  Co.,  J.  L.  88;  State  v.  American  Pow- 
106  Mich.  594.  der  Co.,  50  N.  J.  L.  75. 

28  See  State  v.  Wheeler,  44  N.       29  Butler     v.     Chambers,     36 


94  PUBLIC    HEALTH    AND    SAFETY. 

kets  and  to  prohibit  private  markets  has  been  main- 
tained under  the  police  power,  but  a  street  cannot 
be  appropriated  for  the  use  of  the  public  by  the  Legis- 
lature without  making  compensation  to  the  owners 
of  adjoining  lands.^*'  No  private  right  of  action 
arises  against  a  municipality  for  maintaining  a  mar- 
ket on  premises  condemned  for  that  purpose,  al- 
though it  may  result  that  the  highways  in  the  neigh- 
borhood are  obstructed  to  the  injury  of  individuals.^* 
Legislation  forbidding  private  markets  within  cer- 
tain limits  is  sustained.  Plenary  power  exists  in 
municipalities  with  regard  to  markets.^^  Regula- 
tions, as  to  hawking,  peddling  and  the  like  exist 
in  all  the  States  and  there  is  little  conflict  of  author- 
ity, if  any,  with  regard  to  the  exercise  of  the  police 
power  upon  these  subjects.  The  power  of  regulation 
is  very  commonly  exercised  by  means  of  licenses.^^ 
The  rights  of  individuals  and  the  validity  of  their 
lawful  callings  cannot  be  abrogatetd  under  cover  of 
police  regulations  for  the  public  health,  if  it  is  clear 
that  such  is  not  the  real  purpose  of  the  enactment. 
Indeed  it  is  a  princii^le  of  universal  application 
under  the  judicial  decisions  upon  the  point  that  the 
legislation  must  be  in  good  faith  and  not  merely 
colorable,  and  it  is  competent  for  the  courts  to  de- 
termine this  point,  and  the  courts  are  not  bound 

Minnesota  69;    Johnson  v.  Sy-       si  Henkel  v.  Detroit,  49  Mich, 
mington,  43  Cal.  242.  249.     Cooley,  J. 

30  State  V.  Laverack,  34  N.  J.       32  Twelfth   St.  Market   Co.  v. 
L.  201,  R.  R.,  142  Pa.  St.  80. 

33  Ash  V.  People,  11  Mich.  347. 


PUBLIC    HEALTH    AND    SAFETY.  95 

either  by  the  title  or  by  the  body  of  the  act  setting 
forth  or  reciting  matters  which  may  be  judicially 
noticed  by  the  courts  as  contrary  to  the  fact. 

License  fees  cannot  be  excessive  and  this  may  be 
the  subject  of  judicial  decision.^*  Kegulations  to 
prevent  fires  are  within  the  scope  of  the  police  power, 
as  has  been  frequently  determined.  The  removal 
of  buildings  for  the  purpose  of  preventing  the  spread 
of  fires  is  authorized.  Forbidding  the  maintenance  of 
wooden  structures  in  a  compact  portion  of  the  city 
is  a  power  frequently  exercised  and  clearly  main- 
tainable, but  the  letter  of  the  regulation  must  be 
plainly  within  the  authority  conferred  by  the  legis- 
lature of  the  State. 

Related  to  this  subject  are  laws  prohibiting  the 
keeping  of  explosive  substances  or  highly  inflam- 
mable substances  within  certain  limits.  The  subject 
of  building  laws  is  also  a  related  topic.  Municipal- 
ities are  very  generally  authorized  to  control  the 
construction  of  buildings  and  to  prevent  the  erection 
or  maintenance  of  unsafe  buildings.  Such  regula- 
tions are  purely  police  regulations.  The  determin- 
ation by  the  inspectors  under  these  statutes  cannot 
be  in  general  reviewed  or  reversed  by  the  courts. 
Building  laws  must  be  reasonable  and  not  interfere 
unnecessarily  with  the  rights  of  property.^^  Legis- 
lation upon  the  subject  of  fire  escapes  to  be  attached 

34  Chaddock  v.  Day,  75  Mich.       35  pire  Dept.  v.  Atlas  S.  S.  Co., 
527;  Austin  v.  Murray,  16  Pick.    106  N.  Y.  506. 
126. 


96  PUBLIC    HEALTH    AND    SAFETY. 

to  buildings  is  held  not  to  interfere  unreasonably 
with  the  use  and  enjoyment  of  private  property .^^ 
So  also  elevators  may  be  regulated  for  the  protection 
of  persons  entering  the  buildings.  Particular  uses  of 
buildings  may  be  forbidden  and  it  is  competent  for 
the  legislature  to  declare  that  any  business  consid- 
ered injurious  to  the  public,  such  as  the  sale  of  liq- 
uors shall  not  be  conducted  in  certain  buildings  or 
places.  But  buildings  themselves  cannot  be  abated 
for  violation  of  such  regulations.^^ 

The  regulation  of  railroads  under  the  police  power 
is  considered  in  another  place.  Such  regulations  are 
sustained  upon  the  ground  that  the  franchises  and 
property  of  the  corporation  are  affected  with  a  public 
interest.  Such  regulations  may  enlarge  common  law 
obligations,  but  must  be  reasonable  and  it  is  within 
the  judicial  power  to  determine  whether  or  not  a 
particular  regulation  is  reasonable.  This  is  strictly 
a  judicial  question.^^  For  example,  where  it  did 
not  appear  that  a  railroad  crossing  was  particularly 
dangerous,  or  more  so  than  other  crossings,  a  re- 
quirement in  a  city  ordinance  that  a  flagman  should 
be  kept  by  day  and  a  red  lantern  by  night,  there 
being  but  a  single  track  passed  over  by  all  trains, 
it  was  held  that  the  requirement  was  not  a  reason- 
able one,  and  that  it  was  within  the  constitutional 

36  Fire  Dept.  v.  Chapman,  10       37  Welch  v.   Stowell,  2  Doug. 
Daly  377;   Willy  v.  Mulledy,  78    Mich.  332. 

N.  Y.  310.  38  R.   R.   Co.   V.   Jacksonville, 

67.  111.  37. 


PUBLIC    HEALTH    AND    SAFETY.  97 

limitation  upon  the  exercise  of  the  police  power.^*^ 
Laws  requiring  trains  to  come  to  a  stand  before 
passing  draws  in  bridges  or  before  passing  tracks  of 
other  companies  are  sustained.  In  general  the  legis- 
lature may  judge  whether  the  public  good  requires 
such  legislation,  and  in  doubtful  cases,  the  opinion 
of  the  legislature  is  held  by  the  judges  to  be  final 
and  not  reviewable  by  the  courts.*^ 

It  is  quite  unnecessary  to  give  examples  of  the 
very  numerous  and  ordinary  regulations  of  R.  R. 
companies  by  the  legislatures  or  the  municipalities 
with  reference  to  the  safety  of  passengers,  trainmen 
and  the  general  public.  Plenary  power  is  very 
commonly  conferred  upon  municipalities  over  rail- 
roads within  the  corporate  limits  to  compel  them  to 
provide  protection  against  injury  to  persons  and 
property.  Boards  or  commissions  are  very  gener- 
ally appointed  by  the  State  with  power  to  inspect 
the  working  and  management  of  railroads.  The  cre- 
ation of  such  boards  is  upheld  by  judicial  decisions."*^ 
And  under  the  police  power  the  State  may  even 
require  the  companies  to  pay  the  salaries  of  the 
State  board.^2  But  as  shown  in  another  place,  where 
rates  are  fixed  by  such  boards,  the  reasonableness 


39  D.  L.  &  W.  R.  R.  V.  E.  41  R.  R.  Com.  Cases,  116  U.  S. 
Orange,  41  N.  J.  L.  327;  Sloan  v.  307;  Georgia  R.  R.  v.  Com.,  78 
Pacific  Ry,  61  Mo.  24.  Ga.,  694;  R.  R.  Com.  v.  Portland 

40  Instances  of  regulation  are  Co.,  63  Maine  269. 

collected  by  Mr.  Justice  Gray  in  42  Charlotte  R.  R.  v.  Gibbes, 

Hartford  Ins.  Co.  v.  Chi.  St.  Ry.,  142  U.  S.  386. 
175  U.  S.  101. 


98 


PUBLIC    HEALTH    AND    SAFETY. 


of    such    rates     is     a    question     for    the    judges. 

In  closing  this  chapter,  it  may  be  well  to  employ 
the  language  of  Mr.  Justice  Gray  in  a  dissenting 
opinion,  concurred  in  by  Justices  Harlan  and 
Brewer  :^^ 

"The  police  power  includes  all  measures  for  the 
protection  of  the  life,  the  health,  the  property  and 
the  welfare  of  the  inhabitants,  and  for  the  promotion 
of  good  order  and  public  morals.  It  covers  the  sup- 
pression of  nuisances,  whether  injurious  to  the  pub- 
lic health,  or  to  the  public  morals,  like  gambling 
houses  and  lottery  tickets.*^  This  power,  being 
necessary  to  the  maintenance  of  the  authority  of 
local  government,  and  to  the  safety  and  welfare  of 
the  people,  is  inalienable.  As  was  said  by  Chief- 
Justice  Waite,  referring  to  earlier  decisions  to  the 
same  effect  'No  legislation  can  bargain  away  the 
public  health  or  the  public  morals.  The  people  them- 
selves cannot  do  it,  much  less  their  servants.  The 
supervision  of  both  of  these  subjects  of  governmen- 
tal power  is  continuing  in  its  nature  and  they  are  to 
be  dealt  with  as  the  special  exigencies  of  the  moment 
may  require.  Government  is  organized  with  a  view 
to  their  preservation  and  cannot  divest  itself  of  the 
power  to  provide  for  them.  For  this  purpose  the 
largest  legislative  discretion  is  allowed,  and  the  dis- 
cretion cannot  be  parted  with  any  more  than  the 

43Leisy  v.  Hardin,  135  U.  S.  v.    Hyde    Park,    97   U.    S.    659; 

128,  Phalon  v,  Va.,  8  How,  163,  168; 

4*  Slaughterhouse     Cases,     16  Stone  v.  Mississippi,  101  U.  S. 

Wall.  36,  62,  87;  Fertilizing  Co.  814. 


PUBLIC    HEALTH    AND    SAFETY.  99 

power  itself. '^^  Tlie  police  power  extends  not;o?\i7 
to  things  intrinsically  dangerous  to  public  health, 
such  as  infected  rags  or  diseased  meat,  but, to  things 
which,  when  used  in  a  lawful  manner,  are  subjects 
of  property  and  commerce,  and  yet  may  be  used  so 
as  to  be  injurious  or  dangerous  to  the  life,  the 
health  or  the  morals  of  the  people.  Gunpowder, 
for  instance,  is  a  subject  of  commerce  and  of  lawful 
use,  yet,  because  of  its  explosive  and  danger^ous  qual-; ; 
ity,  all  admit  that  the  State  may  regulate  itske'eping 
and  sale.  And  there  is  no  article,  the  right  ,?)f. the 
State  to  control  or  to  prohibit  the  sale  or  manufac- 
ture of  which  within  its  limits  is  better  established, 
than  intoxicating  liquors.^®  In  Beer  Co.  vs.  Mas- 
sachusetts, above  cited,  this  court,  affirming 
the  judgment  of  the  Supreme  Judicial  Court  of  Mas- 
sachusetts, reported  in  115  Mass.,  153,  held  that  a 
statute  of  the  State  prohibiting  the  manufacture  and 
sale  of  intoxicating  liquors,  including  malt  liquors, 
except  as  therein  provided,  applied  to  a  corporation 
which  the  State  had  long  before  chartered,  and 
authorized  to  hold  real  and  personal  property  for 
the  purpose  of  manufacturing  malt  liquors.    Among 

45  Stone  V.  Miss.,  101  U.  S.  814,  Iowa,  18  Wall.  129;  Beer  Co.  v. 
819;  Butchers'  Union  Co.  v.  Mass.  97  U.  S.  25;  Tiernan  v. 
Crescent  City  Co.,  Ill  U.  S.  746,  Rinker,  102  U.  S.  123;  Foster  v. 
753;  N.  0.  Gas  Co.  v.  La.  Light  Kansas,  112  U.  S.  201;  Mugler 
Co.,  115  U.  S.  650,  672;  N.  O.  v.  v.  Kansas,  112  U.  S.  623;  Kidd 
Houston,  119  U.  S.  265,  275.  v.  Pearson,  128  U.  S.  1;   Eilen- 

46  License  Cases,  5  How.  504;  becker  v.  Plymouth  Co.  Court, 
Downham  v.  Alexandria  Coun-  134  U.   S.  31. 

cil,  10  Wall.  173;  Bartemeyer  v. 


100  PUBLIC  HEALTH  AND  SAFETY. 

the  reasons  assigned  by  this  court  for  its  judgment 
were  t,h«  following:  'If  the  public  safety  or  the  pub- 
lic morals  require  the  discontinuance  of  any  manu- 
facture or  traffic,  the  hand  of  the  legislature  cannot 
be  stayed  from  providing  for  its  discontinuance,  by 
;;  any  incidental  inconvenience  which  individuals  or 
corporations  may  suffer.'  'All  rights  are  held  sub- 
ject to  the,  police  power  of  the  State/  'Whatever 
;■  differenACjS  of  opinion  may  exist  as  to  the  extent  and 
; '  boundaries  of  the  police  power,  and  however  difficult 
"it  maj^  be  to  render  a  satisfactory  definition  of  it, 
there  seems  to  be  no  doubt  that  it  does  extend  to 
the  protection  of  the  lives,  health  and  property  of 
the  citizens,  and  to  the  preservation  of  good  order 
and  the  public  morals,  and  the  legislature  cannot, 
by  any  contract,  divest  itself  of  the  power  to  pro- 
vide for  these  objects.  They  belong  emphatically  to 
that  class  of  objects  which  demand  the  application 
of  the  maxim,  salus  populi  suprema  lex;  and  they 
are  to  be  attained  and  provided  for  by  such  appro- 
priate means  as  the  legislative  discretion  may  devise. 
That  discretion  can  no  more  be  bargained  away  than 
the  power  itself.' " 


CHAPTER   YII. 

THE  STATE  IN  RELATION  TO  ITS  POLICE  POWER  OVER 
CORPORATIONS. 

A  corporation  is  an  institution  of  civil  govern- 
ment. The  State  may  control  the  corporation  which 
it  has  created  in  like  manner  as  Parliament  has 
always  controlled  corporations  in  England,  if  con- 
stitutional provisions  do  not  stand  in  the  way,  and 
in  like  manner  as  it  may  control  natural  persons.^ 
The  number  of  corporations  in  the  several  States 
and  the  property  and  business  interests  in  their 
hands  have  produced  innumerable  decisions  regard- 
ing the  exercise  of  the  police  power  over  them.  In 
general,  it  may  be  said  as  above  that  the  power  over 
the  artificial  person  is  the  same  as  that  over  the 
natural  person,  under  the  judicial  decisions. 

Before  the  New  York  constitution  abolished  the 
creation  of  corx^orations  by  special  act,  they  were 
almost  uniformly  created  by  charters  from  the  legis- 
latures. A  statute  of  Pennsylvania  in  1794  and  one 
of  Michigan  of  1807  provided  that  religious  corpora- 
tions might  be  organized  by  signing  and  recording 
articles  of  association  and  during  the  last  half  cen- 

1  Union  Canal  Co.  v.  Gilfillin,    S.  645;  R.  R.  Co.  v.  Md.,  21  Wall. 
93  Penn.  95;  Sanders  v.  Ins.  Co.,    456. 
44  N.  H.  238;  Boyd  v.  Ala.,  94  U. 

101 


102  POLICE   POWER    OVER    CORPORATIONS. 

tury,  corporations  have  been  almost  exclusively 
created  under  general  laws  passed  by  the  legislature 
and  providing  for  articles  of  association,  setting  out 
the  names  of  the  proposed  corporators,  the  pur- 
poses, the  amount  of  the  capital  stock,  the  par  value 
of  shares,  and  the  amount  of  stock  actually  paid 
in,  and  the  paper  being  signed,  acknowledged  and 
filed,  the  corporation  comes  into  existence. 

The  Federal  Supreme  Court  observes  that  such 
articles  are  in  a  sense  ex  parte,  that  their  formation 
and  execution  do  not  take  place  under  the  super- 
vision of  any  official  authority.  They  are,  say  the 
court,  the  production  of  private  citizens,  gotten  up 
in  their  interest  and  stimulated  by  their  zeal  for 
their  personal  advantage  rather  than  the  general 
good.  These  articles,  further  said  the  court,  neces- 
sarily assume,  by  the  sole  action  of  the  corporators, 
enormous  powers,  many  of  which  have  been  con- 
sidered of  a  public  character  and  affecting  the  inter- 
ests of  the  public  largely  and  seriously.^ 

The  powers  of  such  corporations  have  been  con- 
sidered and  strictly  construed  by  the  same  court. 
It  was  declared  that  the  powers  are  simply  such  as 
the  statute  confers  and  that  the  enumeration  of  them 
implies  exclusion  of  all  others.^  The  charter  of  cor- 
porations so  formed  consists  of  the  statute  under 
which  the  corporation  exists  and  of  the  articles  of 

2  Oregon  Ry.  &  Nav.  Co.  v.  S.  71;  Pa.  Ry.  Co.  v.  St.  Louis 
Oregonian  Co.,  130  U.  S.  1.  etc  Co.,  118  U.  S.  290,  309. 

3  Thomas  v,  R.  R.  Co.,  101  U. 


POLICE    POWER    OVER    CORPORATIONS.  103 

association  by  which  it  is  formed.^  The  police  power 
of  the  State  is  exercised  over  such  corporations  with 
great  freedom  for  the  general  good. 

In  some  of  the  States  there  is  a  State  Board  of 
Control  of  corporations,  and  no  private  business  cor- 
poration is  allowed  to  be  organized  or  do  business 
without  the  approval  of  that  board  upon  published 
notice  and  opportunity  to  be  heard  by  any  citizen. 
Such  boards  are  copied  from  the  boards  with  such 
powers  existing  in  France.  In  some  States,  foreign 
corporations  are  not  permited  to  do  business  without 
obtaining  leave  from  such  a  board.  In  Massachu- 
setts and  other  States,  corporate  powers  are  not 
allowed  to  exist  until  the  full  amount  of  the  pro- 
posed capital  is  paid  or  secured.  In  New  York  and 
Khode  Island  and  other  States,  all  stockholders  of  a 
manufacturing  corporation  are  liable  as  partners  for 
its  debts  until  the  capital  has  all  been  paid  in  and 
evidence  of  that  fact  has  been  placed  in  the  public 
records.  In  many  of  the  States,  all  corporate  books 
and  records  are  made  open  to  the  inspection  of  stock- 
holders and  creditors  and  the  Board  of  Control  and 
no  mortgage  or  floating  debt  is  allowed  beyond  half 
of  the  value  of  the  assets  and  no  mortgage  at  all 
without  the  sanction  of  the  Board  of  Control. 

In  some  States  mortgage  bondholders  who  furnish 
capital  are  treated  as  preferred  stockholders  and 
entitled  to  vote  the  same  as  common  stockholders  for 

*  Van  Etten  v.  Eaton,  19  Mich.    187. 


104  POLICE    POWER    OVER    CORPORATIONS. 

the  board  of  directors.  In  other  States,  stock  and 
bond  issues  are  restricted  by  law  to  actual  expendi- 
tures. All  these  provisions  have  been  sustained  by 
the  courts  as  a  proper  exercise  of  the  police  power 
of  the  State  over  corporations,  but  to  cite  and  re- 
view the  cases  would  extend  too  much  the  limit  of 
this  book. 

Perhaps  the  most  striking  example  of  the  develop- 
ment of  the  law  by  judicial  decisions  is  found  in  the 
American  cases  touching  the  charter  of  a  corpora- 
tion, bringing  the  charter  within  the  meaning  of  the 
term,  contract,  under  the  constitutional  provision  in 
the  Federal  Constitution  preventing  the  State  from 
passing  any  law  impairing  the  obligation  of  a  con- 
tract. In  the  jurisprudence  of  the  mother  country 
where,  as  stated  above,  there  are  no  constitutional 
limitations,  nothing  similar  to  these  decisions  can  be 
found.  The  earliest  case  arose  in  1819  and  is  deemed 
the  most  celebrated  decision  of  the  Federal  Supreme 
judges.^  The  State  of  New  Hampshire  had  passed 
a  law  taking  the  governing  power  from  the  college 
and  substantially  placing  that  power  in  the  State. 
The  judges  said  the  charter  was  not  a  grant  of  politi- 
cal power,  capable  of  modification  by  the  State,  but 
was  a  contract  for  the  security  and  disposal  of  grants 
bestowed  in  trust  for  a  charity.  The  trustees  did 
not  assent  to  and  accept  the  change.  The  turning 
point  of  the  case  was  the  meaning  of  the  word  con- 
tract. 

0  Dartmouth  College  v.  Woodward,  4  Wheaton,  518. 


POLICE    POWER    OVER    CORPORATIONS.  105 

The  college  case  was  itself  a  development  of  the 
law  as  laid  down  in  the  Georgia  land  case.*'  That 
case  was  an  action  by  Fletcher  for  breach  of  cove- 
nants in  a  deed  made  by  Peck  that  the  legislature 
had  the  authority  to  sell  to  Peck's  grantors.  Four 
of  the  five  judges  held  that  the  grant  from  the  State 
was  an  executed  contract  by  the  grantor  not  to  re- 
assert the  title  granted.  If  a  grant  of  land  was  a  con- 
tract, it  was  but  a  step  further  to  hold  that  a  grant 
of  franchise  was  a  contract.  The  college  case  was 
also  a  development  of  the  New  Jersey  tax  case.''^  An 
act  passed  by  the  colony  of  New  Jersey,  in  consider- 
ation of  a  release  of  title  by  Indians,  declared  that 
the  land  purchased  from  them  should  not  be  taxed. 
The  court  held  that  this  act  constituted  a  contract, 
which  could  not  be  impaired  by  a  subsequent  repeal- 
ing act.  In  reality,  it  is  from  this  case,  and  not  from 
the  college  case,  that  the  doctrine  is  derived  that  a 
legislature  may  abdicate  its  power  of  taxing,  which 
is  the  main  power  of  government,  and  make  an  ir- 
revocable contract  with  corporations  for  exemption 
from  taxation. 

The  college  case  has  been  justly  regarded  as  a  bul- 
wark of  private  property.  The  inviolability  of  pri- 
vate property  had  been  protected  by  the  fundamen- 
tal law  of  every  one  of  the  original  thirteen  States, 
before  the  adoption  of  the  Federal  Constitution. 
These  States  had  adopted  the  39th  article  of  Magna 

6  Fletcher  v.  Peck,  6  Cranch.  t  New  Jersey  t.  Wilson,  7 
87.  Cranch.  164. 


IQQ  POLICE    POWER   OVER    CORPORATIONS. 

Charta  against  arbitrary  spoliation,  and  the  rights 
in  general  set  forth  in  that  instrument.  The  con- 
stitution of  the  new  government,  in  inserting  the 
provision  as  to  contracts,  did  substantially  the  same 
thing.  This  was  emphasized  by  the  first  eleven 
amendments  protecting  the  States  from  Federal 
power,  to  which  the  civil  war  amendments  after- 
wards subjected  them.  The  numerous  decisions  set- 
ting aside  acts  of  State  legislatures  avoiding  or 
abrogating  contracts,  have  been,  in  the  view  of  the 
profession  in  general,  a  benefit  to  the  country.  The 
14th  amendment  in  1868  amounted  to  a  solemn  ap- 
proval of  those  decisions,  and  still  further  confirmed 
the  doctrine  of  the  sacredness  of  private  property. 

The  next  important  step  in  the  further  develop- 
ment of  the  law  by  judicial  decision  in  this  regard 
occurred  in  1837.^  Almost  forty  years  later,  in  1876, 
the  so-called  Granger  cases^  exhibited  a  still  further 
and  very  remarkable  development  of  the  law  by  the 
introduction  into  our  constitutional  jurisprudence  of 
the  doctrine  of  the  presumed  dedication  of  private 
property,  corporate  or  not,  to  public  use  and  the 
affirmative  right  of  the  legislatures  of  the  States 
to  fix  the  amount  of  compensation  to  be  charged. 
While  the  State  may  regulate  rates  under  the  police 
power,  the  doctrine  of  these  cases  subject  the  exer- 

8  Charles     River     Bridge     v.  94  U.  S.  164;  C,  M.  &  St.  P.  R. 

Warren  Bridge,  11  Peters  420.  R.  v.  Ackley,  94  U.  S.  179;  W.  & 

9Munnv.  Illinois,  94  U.  S.  113;  St.  P.  R.  R.  v.  Blake,  94  U.  S. 

C.  B.  &  Q.  R.  R.  V.  Iowa,  94  U,  180;  Stone  v.  Wisconsin,  94  U.  S. 

S.  155;  Peck  v.  C.  &  N.  W.  R.  R.,  181. 


POLICE    POWER    OVER    CORPORATIONS.  107 

cise  of  the  power  to  the  prohibitions  of  the  14th 
Amendment  and  declares  that  such  regulations  shall 
be  reasonable  and  that  the  courts  may  determine  in 
judicial  proceedings  whether  given  rates  are  reason- 
able or  not. 

The  Granger  cases  are  an  example  of  the  way  in 
which  judicial  decisions  are  influenced  by  public 
opinion  in  a  free  country  like  ours.  The  Chief  Jus- 
tice, who  delivered  the  main  opinion,  was  placed 
on  the  bench  from  the  Mississippi  valley  and  was 
thoroughly  familiar  with  the  transportation  busi- 
ness, and  with  the  changes  of  time  and  circumstance, 
and  under  his  lead  the  judges  went  outside  of  the 
contract  between  the  State  and  the  corporation 
through  its  charter,  and  discovered  authority  for 
the  interference  of  the  State  with  the  charges  of 
corporate  carriers  in  the  fact  that  the  public  gener- 
ally are  affected  by  the  business  of  transportation. 
It  is  plain  that  the  doctrine  in  these  cases  was  the 
result  of  the  general  feeling  in  the  community  and 
in  the  profession  against  pushing  the  doctrine  of 
the  college  case  to  excess.  While  the  judges  agreed 
that  it  was  too  late  to  contend  that  a  charter  is  not 
a  contract,  within  the  meaning  of  the  constitutional 
provision,  they  said  that  the  contract  contained  no 
exemptions  from  legislative  interference  as  to 
charges,  which  exemptions  might  have  been  inserted 
in  the  charter,  and  that  the  corporation  had  spent 
money  and  had  mortgaged  its  income,  charged  with 


108  POLICE    POWER    OVER    CORPORATIONS. 

knowledge  that  the  legislature  had  the  right  to  in- 
terfere. 

This  development  of  the  law  concerning  the  exer- 
cise of  the  police  power  may  properly  be  called  the 
most  important  yet  made.  The  line  of  argument 
used  by  the  judges  would  have  saved  the  act  of  New 
Hampshire  of  1816  with  regard  to  the  Dartmouth 
College  charter,  because  that  charter  did  not  con- 
tain any  exemption  from  interference  by  governmen- 
tal power.  It  is  not  difficult  to  see  why  the  decision 
of  1876  differed  from  the  decision  of  1819.  In  1819, 
the  country  was  poor  and  everybody  was  glad  to 
encourage  investments  by  foreign  capitalists  or  by 
domestic  capitalists.  The  main  business  of  our 
people  was  to  reclaim  the  wilderness  and  develop 
the  resources  of  our  great  country.  The  unforeseen 
and  astonishing  inventions  which  greatly  increased 
the  business  of  transportation  were  adjudicated 
upon  by  the  judges  of  the  Federal  Supreme  Court, 
steadily,  upon  the  principles  of  the  college  case,  and 
it  cannot  be  denied  that  this  course  of  adjudication 
was  largely  the  source  of  the  success  of  the  great 
enterprises  which  so  much  benefited  the  country.  At 
the  same  time  and  from  the  same  influences,  cor- 
porations had  become  remarkably  numerous  and  in- 
dividual fortunes  had  thereby  been  increased  in 
such  a  way  as  to  impress  the  majority  of  the  people 
with  the  idea  that  our  political  institutions  were 
threatened,  and  to  create  the  purpose  among  the 
electors  of  compelling  a  departure  from  those  prin- 


POLICE    POWER    OVER    CORPORATIONS.  109 

ciples  of  our  constitutional  jurisprudence,  drawn 
from  the  college  case,  which  are  supposed  to,  and 
which  actually  do,  greatly  encourage  and  protect 
the  accumulation  of  property.  All  decisions  of 
courts  as  well  as  statute  laws  are  affected  and  modi- 
fied by  the  general  sentiment  of  the  community  and 
the  legal  profession ;  and  the  feeling  of  apprehension 
with  regard  to  the  safety  of  our  institutions  in  the 
presence  of  corporate  wealth,  undoubtedly  affected 
the  Federal  Supreme  Court  in  the  Granger  cases. 

The  development  of  the  law  touching  the  police 
power  over  corporations  and  concerning  the  doctrine 
announced  in  the  college  case  has  come  very  lately 
under  review  in  the  decisions  holding  that  there  is 
implied  in  the  grant  to  a  carrying  corporation  of 
the  right  to  construct  and  operate  a  railroad,  a  grant 
of  a  right  to  collect  such  tolls  as  will  enable  the 
company  to  successfully  operate  and  return  some 
profit  to  the  investors.  That  there  is  such  an  impli- 
cation is  fully  determined.^^ 

In  the  Nebraska  case  Mr.  J.  Harlan  said :  "But  de- 
spite the  difficulties  that  confessedly  attend  the 
proper  solution  of  such  questions,  the  court  cannot 
shrink  from  the  duty  to  determine  whether  it  be 
true,  as  alleged,  that  the  Nebraska  statute  invades 
or  destroys  rights  secured  by  the  supreme  law  of 
the  land.     No  one,  we  take  it,  will  contend  that  a 

10  Reagan  v.  Farmers'  L.  &  T.    527,    commonly   called   the  Ne- 
Co.,  154  U.  S.  362,  393,  middle;    braska  case. 
Smyth  V.  Ames,   169  U.   S.  466, 


110  POLICE    POWER    OVER    CORPORATIONS. 

State  enactment  is  in  harmony  with  that  law  simply 
because  the  legislature  of.  the  State  has  declared 
such  to  be  the  case;  for  that  would  make  the  State 
legislature  the  final  judge  of  the  validity  of  its  enact- 
ment, although  the  Constitution  of  the  United  States 
and  the  laws  made  in  pursuance  thereof  are  the  su- 
preme law  of  the  land,  anything  in  the  constitution 
or  laws  of  any  State  to  the  contrary  notwithstand- 
ing. Art.  VI.  The  idea  that  any  legislature.  State  or 
Federal,  can  conclusively  determine  for  the  people 
and  for  the  courts  that  what  it  enacts  in  the  form  of 
law,  or  what  it  authorizes  its  agents  to  do,  is  con- 
sistent with  the  fundamental  law,  is  in  opposition 
to  the  theory  of  our  institutions.  The  duty  rests 
upon  all  courts,  Federal  and  State,  when  their  juris- 
diction is  properly  invoked,  to  see  to  it  that  no  right 
secured  by  the  supreme  law  of  the  land  is  impaired 
or  destroyed  by  legislation.  This  function  and  duty 
of  the  judiciary  distinguishes  the  American  system 
from  all  other  systems  of  government.  The  per- 
petuity of  our  institutions  and  the  liberty  which  is 
enjoyed  under  them  depend,  in  no  small  degree  upon 
the  power  given  the  judiciary  to  declare  null  and 
void  all  legislation  that  is  clearly  repugnant  to  the 
supreme  law  of  the  land." 

In  the  Reagan  case,  rates  established  by  the  rail- 
way commission  of  Texas,  were  enjoined  as  unrea- 
sonable and  unjust,  admitting  the  power  of  the  State 
to  establish  rates.  The  holders  of  the  shares  and 
bonds  of  the  company  sought   protection  against 


POLICE    POWER   OVER    CORPORATIONS.  m 

legislative  inyasion  and  destruction  of  the  values  of 
their  property.  The  State  statute  declared  that  in 
certain  cases,  the  rate  fixed  by  the  commission 
should  be  conclusively  deemed  reasonable  and  law- 
ful, but  the  decision  of  the  highest  judges  is  that  the 
reasonableness  of  the  rates  may  be  reviewed  by  the 
court  s.^^ 

The  principle  in  the  Granger  cases  has  recently 
been  reafiflrmed.*^  The  judges  reviewed  and  ad- 
hered to  the  case  of  Munn  and  considered  its  appli- 
cation to  a  case  decided  in  the  New  York  Court  of 
Appeals.  An  act  of  New  York  in  1888  provided  that 
the  maximum  charge  for  the  elevating  of  grain 
should  not  exceed  f  c.  a  bushel  and  that  only  the 
actual  cost  of  trimming  or  shoveling  should  be 
charged,  and  the  court  held  that  the  act  was  a 
legitimate  exercise  of  the  police  power  of  the  State 
over  a  business  affected  with  a  public  interest.  It 
was  claimed  on  the  part  of  Budd  that  the  statute 
of  New  York  was  against  the  14th  Amendment  in 
depriving  the  citizen  of  his  property  without  due 
process  of  law,  and  in  forbidding  the  citizen  to  make 
a  profit  upon  the  use  of  his  property  or  labor,  and 
that  the  police  power  extends  only  to  property  or  bus- 
iness devoted  to  the  public  use  by  its  owner  through 
a  grant  to  the  public  of  a  right  to  demand  its  use; 
and  it  was  said  further  that  the  elevators  were  pri- 

11  See  Pingree  v.  M.  C.  R.  R.,  ter  v.  Turnpike  Co.,  33  L.  R.  A. 
118  Mich.  314;  note  to  Winches-    177. 

12  Budd  V.  N.  Y.,  143  U.  S.  511. 


213  POLICE   POWER    OVER    CORPORATIONS. 

vate  property  not  affected  with  any  public  interest 
and  therefore  not  subject  to  the  regulation  of  rates. 
The  Court  of  Appeals  had  ruled  the  contrary  of  these 
suggestions  in  the  Budd  case,  and  had  declared  that 
the  case  fell  within  the  Munn  case,  and  within  the 
principle  which  permits  the  legislature  to  regulate 
the  business  of  carriers  and  ferry-men  and  hackmen 
and  interest  upon  the  use  of  money;  that  the  criti- 
cism to  which  the  case  of  Munn  had  been  subjected 
proceeded  upon  a  limited  and  strict  construction  and 
definition  of  the  police  power  and  that  there  was 
little  reason  for  a  narrow  interpretation  of  that 
case  or  for  hampering  the  legislative  power  in 
dealing  with  the  varying  necessities  of  society  and 
new  circumstances  calling  for  legislative  interven- 
tion to  guard  the  public  interest.  The  judges  said 
that  they  had  determined  in  the  Sinking  Fund 
Cases,^^  that  it  was  settled  by  the  Munn  case  that 
v/hen  any  business  is  a  matter  of  such  public  interest 
and  importance  as  to  create  a  monopoly  to  which  the 
citizen  must  resort  and  by  means  of  which  a  trib- 
ute might  be  exacted  from  the  community,  the  busi- 
ness then  becomes  subject  to  regulation  by  the  legis- 
lative power.  Justice  Bradley  said  that  this  was 
the  principle  of  the  Munn  decision. 

So  the  judges  said  in  another  case  that  the  govern- 
ment might  regulate  the  price  at  which  water  might 
be  sold  by  one  who  enjoys  a  virtual  monopoly  of  the 
sale.^'^ 

13  99  U.  S.  747.  1*  Spring  Valley  Water  Works 

V.  Schottler,  110  U.  S.  347. 


POLICE    POWER    OVER    CORPORATIONS.  113 

It  is  particularly  to  be  remarked  that  in  the  Ele- 
vator Cases  of  Munn  and  Budd,  there  was  presented 
the  question  of  a  private  citizen  or  unincorporated 
partnership  engaged  in  a  warehouse  business,  en- 
tirely free  from  any  claim  of  right  or  contract  under 
any  act  of  incorporation  of  the  State,  and  entirely 
free  also  from  any  question  of  transportation 
through  several  States;  and  the  judges  went  the 
length  of  determining  that  if  the  business  in  which 
one  is  engaged  is  a  public  business,  where  his  ser- 
vices may  be  required  by  the  public,  it  may  be  regu- 
lated by  statute  determining  what  shall  be  a  reason- 
able compensation  and  fixing  a  maximum. 

Mr.  Justice  Gray  said^^  that  thus  limiting  the  rate 
or  charge  for  services  rendered  in  public  employ- 
ments does  not  establish  any  new  principle  in  the 
law,  but  simply  gives  a  new  effect  to  an  old  prin- 
ciple. This  is  what  we  may  call  properly  the  de- 
velopment of  the  law  by  judicial  decisions. 

The  State  judges  have  in  general  reached  the  same 
conclusion  as  the  Federal  judges  in  regard  to  this 
principle.^^  The  judges  of  Illinois  and  Ohio  declared 
that  although  warehousemen  have  derived  no  special 
privileges  from  the  State  but  merely  exercise  the 
business  of  storing  and  handling  grain  for  individ- 
uals, yet  the  State  may  fix  the  maximum  charge  to 
be  made  by  the  person  carrying  on  the  business.    The 

15  Dow  V.  Beidelman,  125  U.  S.  i«  Ry.  v.  Ry.,  30  Ohio  St.  604, 
680,   686.  616;    Ruggles  v.   People,   91   111. 

256,  262. 


114  POLICE    POWER    OVER    CORPORATIONS. 

Supreme  judges  of  Alabama^'^  ruled  that  the  statute 
regulating  and  controlling  the  transportation  of 
cotton,  in  a  particular  condition  of  it,  was  a  mere 
police  regulation  which  could  be  sustained,  if  in  the 
opinion  of  the  law-making  power  agricultural  labor 
would  be  demoralized  without  the  operation  of  the 
statute.  The  judges  in  Kentucky^ ^  said  that  the  pro- 
prietors of  tobacco  warehouses  were  conducting  a 
public  employment  such  as  made  them  subject  in 
their  charges  and  methods  of  conducting  business  to 
legislative  regulations,  as  having  a  practical  monop- 
oly of  the  business.  The  judges  in  Massachusetts^^ 
stated  that  nothing  is  better  established  than  the 
power  of  the  legislature  to  make  police  regulations 
declaring  how  property  may  be  used,  and  how  busi- 
ness may  be  carried  on,  even  though  such  regula- 
tions may  interfere  to  some  extent  with  the  full  en- 
joyment of  private  property  without  compensation, 
and  held  that  common  law  rules  declaring  or  limit- 
ing the  right  to  enjoy  property  may  be  changed  as 
occasion  may  require.  The  judges  in  Nebraska^*' 
said  that  whenever  an  individual  or  corporation  un- 
dertook to  supply  a  public  demand,  arising  from  the 
requirements  of  commerce,  such  as  public  tele- 
phones, the  demand  must  be  supplied  to  all  alike 
without  discrimination  and  that,  too,  without  the 
existence  of  any  statute.     They  said  that  whenever 

"Davis  V.  State,  68  Ala.  58.  i9  Sawyer  v.  Davis,  136  Mass. 

18  Nash     V.      Page,      80      Ky.    239. 
515.  20  Webster  Telephone  Case,  17 

Nebraska  126. 


POLICE    POWER    OVER    CORPORATIONS.  115 

any  person  or  company  is  carrying  on  a  business 
affected  with  a  public  interest,  there  must  be  no 
discrimination  in  favor  of  or  against  any  person. 
The  same  doctrine  was  applied  to  telephones  in 
Indiana,-^  where  the  judges  said  that  the  State  may 
prescribe  a  maximum  price.  The  same  doctrine  was 
applied  by  the  judges  in  Maryland  with  regard  to 
telephones.^^ 

Undoubtedly,  we  must  now  regard  the  principle 
in  the  Munn  case  as  firmly  established.  In  the  case 
of  Budd,  there  were  three  dissenting  judges  who 
based  their  opinion  upon  the  ground  that  the  doc- 
trine of  the  majority  of  the  court  places  a  public 
interest  in  the  use  of  property  upon  the  same  basis  as 
the  public  use  of  the  property  itself.  The  dissenting 
judges  said  that  property  can  be  considered  as  de- 
voted to  public  use  only  when  the  use  is  one  which 
the  public,  organized  as  a  State,  has  a  right  to  create 
and  maintain,  and  therefore  one  in  which  all  the  pub- 
lic have  a  right  to  share.  The  dissenting  judges  said 
that  there  is  hardly  any  propei-ty  in  whose  use  the 
public  has  no  interest;  that  this  interest  is  a  very  dif- 
ferent thing  from  a  public  use.  The  dissenting  judges 
said  that  the  paternal  theory  of  government  is 
odious;  that  the  utmost  liberty  should  be  allowed  to 
the  individual,  and  the  fullest  protection  to  him  and 
to  his  property;  and  that  if  the  State  may  regulate 

21  Hockett  V.  State,  105  Ind.  22  Chesapeake  Telephone  Co. 
258.  V.  B.  &  0.  Tel.  Co.,  66  Md.  414. 


116  POLICE    POWER    OVER    CORPORATIONS. 

the  price  of  one  service,  not  a  public  service,  or  the 
compensation  for  the  use  of  one  kind  of  property  not 
devoted  to  public  use,  it  may  with  equal  reason  regu- 
late the  price  of  all  services  and  the  compensation 
to  be  paid  for  the  use  of  all  property.  And  the  dis- 
senting judges  predicted  that  the  time  would  come 
when  the  folly  of  the  doctrine  of  the  majority  of  the 
court  would  become  so  apparent  that  the  courts 
would  hasten  to  declare  that  the  State  can  prescribe 
a  fixed  compensation  only  when  it  has  granted  a 
special  privilege  in  the  creation  of  a  corporation 
or  when  the  services  are  actually  public  services,  or 
the  property  is  in  fact  devoted  to  the  public  use. 

When  the  Budd  Case  was  in  the  Court  of  Appeals 
of  New  York,  Judges  Gray  and  Peckham  dissented 
and  cited  a  case  where  Judge  Peckham  had  reviewed 
the  cases  and  text  books.-^  These  judges  said  that 
the  New  York  statute  regulated  the  prices  charged 
by  an  individual  in  the  prosecution  of  his  private 
business  upon  the  ground  that  the  business  is  a  vir- 
tual monopoly,  and  that  the  interests  of  trade  and 
commerce  and  the  welfare  of  the  State  required  that 
charges  should  be  regulated  by  the  State.  The  dis- 
senting judges  declared  that  this  plea  for  the  exten- 
sion of  the  police  power  so  far  as  to  interfere  with 
the  conduct  of  legitimate  business,  finds  no  support 
in  reason,  and  tends  to  nullify  that  provision  of  the 
Constitution  which  is  supposed  to  guarantee  to  each 

23  People  V.  Walsh,  C  N.  Y.  S.  554. 


POLICE    POWER    OVER    CORPORATIONS.  in 

individual  that  he  shall  not  be  deprived  of  liberty  or 
property  without  due  process  of  law.  And  the  dis- 
senting judges  declared  that  the  theory  and  frame 
of  our  government  do  not  involve  the  idea  that  so 
great  a  power  should  be  lodged  in  the  legislature; 
that  the  consequences  may  be  that  we  will  have  no 
protection  against  socialistic  laws;  that,  in  fact,  the 
legislature  will  say  to  the  citizen  "because  your  busi- 
ness has  become  advantageous  and  necessary  to  a 
large  portion  of  the  public,  you  shall  not  be  allowed 
to  pursue  it  unless  you  reduce  your  charges  to  a  rate 
fixed  by  us."  And  they  said  that  the  police  power 
cannot  be  stretched  to  reach  such  a  case,  if  we  con- 
tinue to  have  any  respect  for  the  provisions  of  the 
Constitution.  Regulation  of  employments  affected 
with  a  public  interest  is  now  general  in  nearly  all 
the  States.  For  example,  the  "Transportation  Cor- 
poration Law"  of  New  York^^  embraces  ferry,  navi- 
gation, stage-coach,  and  tramway  corporations; 
pipe-line,  gas,  electric-light,  and  water-works  cor- 
porations; telegraph  and  telephone  corporations; 
turnpike,  plank-road,  and  bridge  corporations. 

The  principle  of  the  Granger  cases  has  also  been 
reaffirmed  in  the  Dakota  case^^  and  the  Minnesota 
case.26  In  the  latter  case,  the  Supreme  judges  in 
Minnesota  held  that  the  decision  of  the  railroad  com- 

24  N.  Y.  Laws  1890,  ch.  566,  25  Brass  v.  N.  Dakota,  153  U. 
amended      by      L.      1892,      ch.    S.  391. 

617.  20  Chicago  R.  R.  v.  Minn.,  134 

U.  S.  418. 


118  POLICE    POWER    OVER    CORPORATIONS. 

mission  as  to  charges  whicli  are  reasonable  was  con- 
clusive and  that  in  a  proceeding  by  mandamus 
against  the  company  to  compel  obedience  to  the 
order  of  the  commission,  the  reasonableness  of  the 
rate  could  not  be  controverted ;  but  the  Federal  Su- 
preme Court  disafllrmed  this  proposition,  with  three 
dissenting  judges.  In  the  Michigan  Passenger  Rate 
Case^^  the  court  below  sustained  the  power  of  the 
legislature  to  fix  rates  without  any  judicial  inter- 
ference, and  the  Federal  Stipreme  Court  affirmed  the 
decision,  but  put  its  opinion  upon  the  ground  that 
the  position  of  the  railroad  company  could  not  be 
upheld  upon  the  agreed  statement  of  facts.  In  other 
words,  it  was  held  not  to  be  shown  that  the  rates  in 
question  did  not  actually  afford  the  carrier  any  com- 
pensation at  all,  and  further,  that  it  was  not  shown 
that  the  rates  would  not  afford  a  reasonable  compen- 
sation if  the  business  should  be  properly  managed. 
Evidently,  this  latter  observation  opens  the  way 
for  deciding  in  favor  of  the  rates  established  by  the 
commission  in  any  case.  However,  it  cannot  be  de- 
nied that  there  are  practical  difficulties  in  the  way 
of  courts  reaching  a  just  decision  in  cases  of  this 
character.^'"^ 

In  the  original  College  case,  the  Supreme  judges 
of  New  Hampshire-^  held  merely  that  the  college  was 

27  Chi.   etc.   Ry.  v.  Wellman,       29  Dart.  Coll,  v.  Woodward,  1 
143  U.  S.  339.  N.  H.  111. 

28  See  C,  M.  &  St.  P.  Ry.  v. 
Tompkins,  176  U.  S.  167. 


POLICE    POWER    OVER    CORPORATIONS.  119 

a  public  corporation,  because  the  corporators  had  no 
private  interest  in  the  public  educational  charity, 
and  that,  therefore,  being  a  public  corporation,  it 
was  subject  to  regulation.  The  Federal  Supreme 
judges,  however,  declared  the  property-  to  be  a  pri- 
vate grant  to  the  corporators  in  consideration  of  the 
future  performance  of  duties  by  them,  and  declared 
that  this  grant  was  a  contract,  the  obligation  of 
which  was  impaired  by  the  change  made  in  the  col- 
lege without  the  consent  of  the  corporators.  Mr. 
Justice  Bradley  said  in  1878,^°  that  the  College  de- 
cision declaring  charters  to  be  contracts  was  a  sur- 
prise to  many  statesmen  and  jurists  and  operated  to 
deprive  the  State  of  nearly  all  control  over  corpora- 
tions of  their  own  creation,  and  also  induced  a  lib- 
eral construction  of  resei^ations  of  power  to  alter, 
amend  or  repeal  the  charter. 

The  College  case  affords  an  example  of  the  develop- 
ment of  the  law  in  another  particular.  The  New 
Hampshire  court  constrned  the  grant  creating  the 
corporation  as  erecting  a  public  corporation,  and  by 
a  principle  before  that  time  established  and  of  ex- 
treme importance.  State  laws  were  held  rules  of  de- 
cision in  the  Federal  courts. ^'^  It  has  been,  further- 
more, universally  held  that  the  construction  of  a 
State  law  by  the  highest  court  of  the  State  is  a  part 

30  Sinking  Fund  Cases,  99  U.  3i  jud.  Act  1789,  sec.  34;  R.  S. 
S.  748.  U.  S.  §  731. 


130  POLICE    POWER    OVER    CORPORATIONS. 

of  the  law  itself.^-  The  Federal  judges  have  admitted 
that  ordinarily  the  construction  of  the  State  statutes 
by  the  State  judiciary  is  conclusive  upon  the  Federal 
court.^^  Nevertheless,  the  Federal  judges  have,  in 
developing  the  law,  created  an  exception  that,  al- 
though the  State  court  may  have  construed  the  stat- 
ute as  not  containing  any  contract  at  all,  the  Federal 
judges  may,  nevertheless,  give  a  different  construc- 
tion to  the  State  law,  and  may  discover  and  adjudge 
that  it  does  contain  a  contract.^^  The  ground  upon 
which  the  Federal  judges  proceed  is  that  they  cannot 
enforce  the  constitutional  clause  without  determin- 
ing for  themselves  whether  or  not  a  contract  exists. 
The  judges  have  said  that  the  point  decided  in  the 
College  case  has  been  considered  as  settled  in  the  jur- 
isprudence of  the  entire  country,  and  that  although 
murmurs  of  doubt  and  dissatisfaction  are  occasion- 
ally heard,  no  re-argument  has  ever  been  asked  for.^^ 
The  College  charter  was  treated  in  the  College  case 
the  same  as  if  it  had  been  a  legislative  act  of  the 
State.^^  In  the  development  of  the  law  in  this  regard 
the  Federal  judges  have  gone  further  yet,  and  held 
that  after  a  statute  of  the  State  has  been  settled  by 

32  Forsyth   v.   Hammond,   166  mer,   109  U.  S.  244,  256;    M.  & 

U.  S.  506,  519.  0.  R.  R.  v.  Tenn.,  153  U.  S.  486. 

3."  Wright  V.  Nagle,  101  U.  S.  35  Farrington  v.  Tenn.,  95  U. 

793.  S.  679,  685. 

34  Jefferson   Bk.   v.    Skelly,   1  36  n.  O.  Water  Works  v.  Sugar 

Black  436;  L.  &  N.  R.  R.  v.  Pal-  Co.,  125  U.  S.  18. 


POLICE    POWER    OVER    CORPORATIONS.  121 

judicial  construction  in  the  State  court,  the  change 
of  such  construction  has  the  same  effect  upon  con- 
tracts as  a  legislative  amendment  would  have.^'^ 

Upon  this  fundamental  point  of  the  power  and  pos- 
sible duty  of  the  Federal  judges  to  discover  a  statu- 
tory contract  where  both  the  Legislature  of  the  State 
and  the  judges  of  the  State  have  denied  the  existence 
of  any  contract  at  all,  the  doctrine  of  the  judges  in 
the  College  case  remains  the  same  at  the  present 
day.  Upon  this  point,  in  Washington  University 
vs.  Rouse,^®  Justices  Miller,  Chase  and  Field  said,  in 
their  dissenting  opinions,  that  they  must  be  per- 
mitted to  say  that  in  deciding  the  validity  of  a  con- 
tract, the  judges  had  been  quick  to  discover  a  con- 
tract in  order  that  it  might  be  protected,  and  had 
been  slow  to  perceive  that  what  was  claimed  to  be 
a  contract  was  not  so  by  reason  of  the  want  of  au- 
thority in  those  who  profess  to  bind  others,  and  that 
this  had  been  particularly  so  in  regard  to  contracts 
by  Legislatures  and  by  municipal  bodies.  This  dis- 
sent was  in  a  case  where  a  Legislature  had  exempted 
a  college  from  taxation,  and  twelve  years  later  had 
imposed  a  tax.  There  was  no  declaration  that  the 
exemption  should  be  perpetual,  and  the  State  relied 
upon  the  Charles  River  Bridge  case;  ex- Judge  Curtis, 
for  the  exemption,  relied  upon  the  College  case.  The 
dissenting  judges  declared  that  the  principle  with 

37  La.  V.  Pillsbury,  105  U.  S.        38  g  Wall,  442. 
295. 


122  POLICE    POWER    OVER    CORPORATIONS. 

respect  to  the  power  of  the  Legislature  to  exempt 
from  taxation  must  finally  be  abandoned,  because 
rich  corporations  and  individuals  making  contracts 
with  the  Legislatures  used  such  appliances,  as  Is 
known  they  do  use,  to  obtain  exemption  from  the 
burden  of  supporting  the  government. 

In  the  development  of  the  law  in  this  regard,  it 
was  not  at  all  foreseen  that  the  principle  of  search 
for  a  contract  would  be  carried  into  the  domain  of 
business  corporations  to  the  extent  that  this  has 
been  done  in  later  years.  With  respect  to  this,  two 
conflicting  opinions  have  been  entertained  by  the 
profession  and  the  community.  One  view  is  that 
the  doctrine  of  the  College  case,  as  applied,  benefi- 
cially supports  exclusive  rights  granted  to  some  and 
denied  to  others,  for  the  general  good;  the  opposite 
view  Is,  that  it  strengthens  odious  monopolies  con- 
ferred upon  the  few  at  the  expense  of  the  many. 

The  judges  have  interpreted  the  terms  of  the  con- 
stitutional clause  in  their  ordinary  meaning,  and 
hold  the  word  contract  in  the  constitution  to  mean 
an  agreement  by  two  or  more  individuals,  or  between 
a  State  and  a  person  or  corporation,  for  a  considera- 
tion, to  do  or  not  to  do  certain  acts.^^  In  the  case  of 
a  private  corporation,  the  future  and  continuous  per- 
formance of  the  duties  imposed  by  the  charter  con- 
stitutes the  consideration.     In  a  recent  important 


39  La.  V.  Mayor,  109  U.  S.  283,    S.  432,  444;  Royal  v.  Va.,  116  U. 
288;  Murray  v.  Charleston,  76  U.    S.  592. 


POLICE    POWER    OVER    CORPORATIONS.  123 

case'*"  the  majority  of  the  judges  declined  to  apply 
the  principle  of  the  College  case,  because  the  sub- 
ject matter  of  the  undisputed  contract  which  was 
conceded  to  be  contained  in  the  charter  was  beyond 
the  powder  of  the  Legislature.  The  railroad  company 
relied  upon  the  Act  of  the  State  of  Illinois  of  1869, 
granting  submerged  lands  in  the  harbor  of  Chicago. 
This  Act  had  been  repealed  by  a  later  Act  of  1873. 
The  three  dissenting  judges  applied  the  College  case 
and  declared  that  the  later  statute  was  an  arbitrary 
act  of  revocation,  not  passed  in  the  exercise  of  any 
reserved  power,  and  was,  therefore,  void  as  impair- 
ing the  obligation  of  the  Act  of  1869,  which  they  af- 
firmed to  be  a  contract  beyond  all  question.  But 
the  majority  of  the  judges  upheld  the  Act  of  1873 
upon  the  ground  of  the  incapacity  of  the  State  to 
make  irrepealable  contracts,  by  conveying  lands 
which  the  State  held  in  trust  for  the  public,  as  all 
submerged  lands  are  held.  This  case  is  a  good  illus- 
tration both  of  the  enormous  interests  which  may 
depend  upon  the  development  of  the  College  case, 
and  of  the  astuteness  with  which  that  case  may  be 
distinguished  when  likely  to  work  public  harm.  The 
majority  of  judges,  did  not,  by  any  means,  depart 
from  the  College  case,  but  merely  decided  that  trust 
property  could  not  be  conveyed  away  by  the  State 
to  private  corporations.^^ 

40  Chicago   Lake  Front   Case,       ^i  See  111.  Cent.  R.  R.  v.  Chi- 
lli. Cent.  R.  R.  v.  Illinois,  146    cage,  176  U.  S.  646, 
U.  S.  387. 


124 


POLICE    POWER    OVER    CORPORATIONS. 


The  transcendent  nature  of  the  police  power  over 
the  public  health  and  the  public  morals,  as  inter- 
preted by  the  judges,  is  illustrated  by  the  cases 
which  hold  that,  although  a  State  may  abdicate  or 
bargain  away  the  overriding  taxing  power,  yet  it 
cannot  abdicate  or  bargain  away  its  governing  power 
as  respects  health  and  morals.  Contracts  made  by 
the  State  with  regard  to  these  subjects  may  be  modi- 
lied  and  may  even  be  abrogated  by  subsequent  legis- 
lation. This  power  of  abrogation  or  modification 
the  judges  declare  w^as  originally  possessed  by 
the  States,  and  has  not  been  done  away  with  by  the 
Constitution  or  its  amendments.  For  example,  the 
charter  of  a  Lottery  Co.  may  be  amended  without  its 
consent;  and  also  the  charter  of  a  beer  manufactur- 
ing company  may  be  interfered  with;  and  the  char- 
ter of  a  bone  factory;  and  also  a  monopoly  of  the 
slaughtering  of  cattle.^- 

Nevertheless,  some  of  the  judges  have  declared 
that  the  police  power  is  no  more  sacred  than  the 
taxing  power,  and  is  no  more  the  exercise  of  the  gov- 
ernmental function  than  is  the  taxing  power.  And 
this  view  would  seem  to  be  correct,  because  the  tax- 
ing power  is  the  highest  known  to  the  law,  and  upon 
it  the  very  existence  of  the  State  depends.  Yet  the 
doctrine  is  firmly  established  that  the  taxing  power 
may  be  bargained  away.    An  illustration  of  judicial 


42  Boyd  V.  Ala.,  94  U.  S.  645 
Beer  Co.  v.  Mass.,  97  U.  S.  25 
Stone  V.   Miss.,  101   U.   S.   844 


Fertilizing  Co.  v.  Hyde  Park,  97 
U.  S.  679;  Butchers'  Union  v. 
C.  C.  Co.,  Ill  U.  S.  746. 


POLICE    POWER    OVER    CORPORATIONS.  125 

opinion  that  the  taxing  power  and  police  power 
stand  upon  the  same  footing  in  this  regard  is  found 
in  the  dissent  of  Mr.  Justice  Strong  in  the  bone  fac- 
tory case."*^  He  held  that  the  State  may  contract 
away  the  right  to  abate  nuisances,  and  declared  that 
a  police  regulation  cannot  be  made  by  the  State  in 
the  guise  of  an  amendment  to  a  charter,  curtailing 
the  corporate  franchise.  Justice  Bradley  said  that 
monopolies  are  the  bane  of  politics  of  the  present 
day,  and  that  in  the  eager  pursuit  of  gain  they  are 
sought  in  every  direction,  and  that  the  Constitution 
forbids  them  from  being  carried  by  legislative  enact- 
ments into  the  common  callings  of  life,  so  as  to  cut 
off  the  right  of  the  citizen  to  earn  his  bread  by  the 
trade  he  has  learned. 

It  has  already  been  shown  above  that  in  the  devel- 
opment of  the  doctrine  of  the  College  case  the  char- 
ter of  a  railroad  or  bridge  corporation  is  held  to  con- 
tain a  contract,  by  necessary  implication,  not  to  re- 
duce the  tolls  below  a  point  at  which  expense  can  be 
paid  and  a  reasonable  interest  realized  upon  the  in- 
vestment. Mr.  Justice  Field  declared  in  his  dissent 
in  the  Granger  case  of  Stone  vs.  Wisconsin,^^  that 
the  rights  and  privileges  implied  in  a  charter  con- 
tract are  as  much  a  part  of  it  as  what  is  expressed, 
and  that  this  doctrine  is  no  longer  open  to  discussion. 

It  is  apparent  that  the  proposition  that  the  public 
can  use  private  property  invested  in  railroads  at  a 
compensation  not  only  not  agreed  to  by  the  owners, 

43  97  U.   S.   679.  44  97  U.  S.  181. 


126  POLICE    POWER    OVER    CORPORATIONS. 

but  SO  low  that  no  profit  whatever  can  be  realized, 
is  repugnant  to  common  sense  and  to  constitutional 
right,  under  the  existing  interpretation  of  the  Col- 
lege case.  Those  who  claim  the  contrary  ought  to 
advocate  the  taking  by  the  State  of  all  railroad  prop- 
erty under  the  right  of  eminent  domain.  The  State 
would  then  pay  for  the  right  to  collect  rates,  which 
is  clearly  property,  as  unanimously  declared  by  the 
judges  in  a  recent  case.^^  The  State  would  then  as- 
sume the  whole  business  of  transportation  as  well 
as  that  vital  part  of  regulating  rates  of  fare  and 
freight.  In  Prussia,  and  other  countries,  where  the 
paternal  theory  of  government  prevails,  this  is  done. 
The  principle  of  the  College  case  is  one  thing  as 
applied  to  the  privileges  of  an  ancient  college  for  the 
preservation  of  learning  and  religion,  and  quite  an- 
other thing  as  applied  to  the  protection  of  some  mo- 
nopoly contracted  for  with  the  Legislature.  At  the 
present  day,  probably  no  one  doubts  the  wisdom  of 
the  development  of  the  law  in  the  Charles  River 
Bridge  case,  modifying  and  limiting  the  doctrine  of 
the  College  case.  Eighteen  years  had  passed  since 
the  College  case.  Monopolists  had  plied  their  trade 
around  the  Legislatures.  The  profession  and  the 
community  had  begun  to  feel  that  the  States  were 
likely  to  be  crippled  beyond  reason  in  the  exercise 
of  the  police  power  by  the  logical  results  of  the  Col- 
lege case.    The  judges  of  Massachusetts  accordingly 

45  Monongahela  Nav.  Co.  v.  U.  S.,  148  U.  S.  212. 


POLICE    POWER    OVER    CORPORATIONS.  127 

sustained  the  Legislature  in  incorporating  a  second 
toll  bridge,  near  an  existing  one,  and  the  Federal 
judges  were  of  the  same  opinion,  and  refused  to  dis- 
co-ser  any  contract  in  the  charter  of  the  first  bridge. 
That  charter  did  not  contain  the  grant  of  an  ex- 
clusive privilege  in  express  terms,  and  the  courts 
said  that  in  such  a  charter  nothing  passes  by  impli- 
cation. 

But,  suppose  that  the  Legislature  had  enacted  a 
law  creating  a  bridge  commission,  and  that  such 
commission  had  fixed  the  tolls  on  the  first  bridge  at 
such  a  rate  as  would  not  pay  the  expense  of  keeping 
the  bridge  in  repair,  to  say  nothing  of  allowing  a  fair 
interest  on  the  investment;  would  not  Chief  Justice 
Taney  and  his  associates  have  probably  said  that  the 
contract  agreeing  that  tolls  might  be  collected  upon 
the  bridge  might  be  construed  as  a  provision  that 
tolls  might  be  collected  sufficient  in  amount  to  pay 
expenses  and  a  reasonable  profit,  and  that  a  later 
Legislature  could  not  take  away  that  right? 

The  decision  in  the  Charles  River  Bridge  case  is 
the  existing  law  as  appears  in  the  recent  opinion  of 
Mr.  Justice  Gray.*^  He  said  that  every  public  grant, 
if  ambiguous,  is  to  be  construed  against  the  grantee, 
because  an  intention  to  grant  away  rights  in  which 
the  whole  public  is  interested  cannot  be  presumed 
unless  unequivocally  expressed,  or  necessarily  to  be 
implied;   and  also  because  the  grant  is  supposed  to 

46  Central  Transp.  Co.  v.  Pull  man  Car  Co.,  139  U.  S.  49. 


128  POLICE    POWER    OVER    CORPORATIONS. 

be  made  at  the  solicitation  of  the  grantee,  and  to  be 
drawn  up  by  him,  and  the  words  used  are  to  be 
treated  as  the  words  of  the  grantee.  "This  rule  of 
construction,"  he  said,  "is  a  safeguard  of  the  interest 
of  the  public  against  any  attempt  of  the  grantee  to 
take  by  the  insertion  of  ambiguous  language  what 
could  not  be  obtained  by  clear  and  express  terms," 
citing  the  Charles  River  Bridge  case,  and  others.^'^ 
It  is  also  adjudged  that  this  rule  applies  particularly 
to  articles  of  association  framed  under  general  laws, 
as  a  substitute  for  a  legislative  charter,  where  the 
articles  assume  and  define  the  powers  of  a  corpora- 
tion by  the  mere  act  of  association,  and  without  any 
supervision  of  the  Legislature  or  of  any  public  au- 
thority.''^ 

The  principle  of  the  College  case  is  applied  at  the 
present  day  in  its  full  vigor;  and  when  we  look  at 
the  number  and  variety  of  the  cases  involving  the 
principle  of  that  case  it  seems  that  it  is  as  enduring 
as  the  Constitution  itself.  These  cases  have  arisen 
mainly  in  the  southern  and  western  States,  and  in 
what  is  sometimes  called  the  debtor  portion  of  the 
country.  The  insolvency  act  of  Pennsylvania  of  1812 
was  held  void  so  far  as  it  attempted  to  discharge  the 
contract.^''  The  act  of  Vermont  of  1794,  granting 
lands  of  a  certain  society  to  a  town  in  which  the 

47  Dubuque  &  Pacific  R.  R.  v.  *«  Oregon  Ry.  v.  O.  Ry.,  130 

Litchfield,   13   How.   66,   88,   89;  U.  S.  26,  27. 

Slidell  V.  Grandjean,  111  U.  S.  49  F.   &   M.   Bk.   v.    Smith,   6 

412,  437,  430.  Wheaton  131. 


POLICE    POWER    OVER    CORPORATIONS.  129 

lands  were  situated,  was  held  void  as  impairing 
the  contract  contained  in  the  grant  of  the  lands  to  the 
society.^^  The  act  of  Illinois,  laying  restrictions  upon 
mortgage  sales,  was  held  void  as  impairing  the  obli- 
gation of  the  mortgage  contract.^^  The  act  of  the 
same  State  in  regard  to  sales  under  execution  was 
held  void  as  impairing  the  obligation  of  previous 
judgments.^^  The  act  of  Maryland  taxing  stock- 
holders in.  banks,  as  applied  to  banks  organized  prior 
to  the  act,  was  held  to  impair  the  obligation  of  the 
charter.^^  The  insolvency  law  of  the  same  State  af- 
fecting debts  to  citizens  of  others  States,  was  held 
void  as  impairing  the  contract.^*  The  act  of  Missis- 
sippi declaring  it  unlawful  for  banks  to  transfer  evi- 
dences of  debt  was  held  to  impair  the  contract  in  the 
charter  of  the  bank.^^  The  act  of  Arkansas  that  taxes 
should  be  paid  in  par  funds  was  held  to  impair  the 
obligation  of  the  contract  in  a  bank's  charter  that  its 
notes  should  be  received  for  debts  due  the  State,  in 
so  far  as  the  act  had  application  to  the  notes  of  the 
bank  issued  prior  to  the  date  of  the  act.^®  Several 
statutes  of  the  State  of  Arkansas  withdrawing  the 
assets  of  the  State  bank  from  creditors,  when  it  was 
insolvent,  were  held  to  impair  its  contracts  with  its 

50  Society  etc.  v,  N.  Haven,  8  f^s  Gordon      v.      The     Appeal 
Wheaton  464,  Court,  3  How.  133. 

51  Bronson  &  Kinzie,  1  How.  54  Cook  v.  Moffat,  5  How.  295. 
311.  sr,  Bk.  V.  Sharp,  6  How.  301. 

52  McCracken   v.    Haywood,   2  se  Woodruff    v.    Trapnall,    10 
How.  608.  How.  190. 


130 


POLICE    POWER    OVER    CORPORATIONS. 


creditors.^'^  The  statute  of  Ohio,  taxing  the  State 
bank,  was  held  to  impair  the  obligation  of  the  con- 
tract in  the  charter.^^  The  act  of  Alabama  as  to  re- 
demption from  mortgage  sales  by  judgment  creditors 
of  the  mortgagor  was  held  to  impair  the  obligation 
of  contract,  so  far  as  the  act  affected  mortgages  made 
before  the  act.^^  The  act  of  Maine  repealing  a  prior 
act  making  stockholders  of  a  corporation  liable  for 
the  debts  of  the  company  individually,  impaired  the 
obligation  of  the  contract  as  regards  prior  debts.^^ 
The  act  of  New  York  authorizing  the  Binghamton 
company  to  build  a  bridge  within  the  limits  covered 
by  the  charter  of  the  Chenango  company,  impaired 
the  obligation  of  the  contract  contained  in  the  char- 
ter of  the  latter  company .^^  The  act  of  Illinois  af- 
fecting the  provisions  of  law  concerning  taxation  in 
the  city  of  Quincy,  which  were  in  force  w^hen  the 
issue  of  its  bonds  was  authorized,  was  held  to  impair 
the  obligation  of  the  contract  with  the  bondholders.^^ 
The  act  of  Tennessee  that  notes  of  the  Tennessee 
Bank  should  not  be  received  for  taxes,  impaired  the 
contract  in  the  charter,  so  far  as  the  law  applied  to 
prior  issues  of  the  notes.^^  The  act  of  Missouri  as  to 
taxes  was  held  to  impair  the  obligation  of  the  con- 

57  Curran     v.     Arkansas,     15       gi  Case    of    the    Binghamton 
How.  304.  Bridge,  3  Wall.  51. 

58  State    Bank    v.    Knoop,    16 

How    369  "■  ^°^  Hoffman  v.  Quincy,  4 


Wall.  535. 
c 
60  Hawthorne  v.  Calef ,  2  Wall.    44. 


59  Howard  v.  Bugby,  24  How. 
461.  C3  Furman  v.  Nichols,  8  Wall. 

6 

10, 


POLICE    POWER    OVER    CORPORATIONS.  131 

tract  in  the  charter  of  the  Home  of  the  Friendless.^* 
The  general  taxation  law  of  North  Carolina  was  held 
to  impair  the  contract  in  a  railroad  charter,  exempt- 
ing the  property  and  franchises  from  taxation.^^  The 
provisions  in  the  constitution  of  Georgia,  exempting 
property  from  execution,  impaired  the  obligation  of 
judgment  so  far  as  it  applied  to  prior  judgments.^® 
The  railroad  ordinance  of  the  constitution  of  Mis- 
souri was  held  to  impair  the  obligation  of  the  charter 
of  the  Pacific  R.  R.^'^  The  act  of  Louisiana  for  the 
delivery  of  bonds,  under  the  funding  act,  to  the  Lou- 
isiana Levee  Co.,  impaired  the  contract  made  with 
the  holders  of  consolidated  bonds.^®  The  taxation 
law  of  Georgia  of  1874  impaired  the  charters  of  the 
companies  consolidated  into  the  plaintiff  corpora- 
tion.^^ The  tax  law  of  Tennessee  impaired  the  con- 
tract contained  in  the  charter  of  the  Planters' Bank.'^^ 
The  tax  law  of  New  Jersey  of  1873  impaired  the  obli- 
gation of  the  charter  of  the  M.  &  E.  R.  R.  Co.'^^  The 
tax  ordinance  of  Charleston,  South  Carolina,  of  1871, 
withholding  the  tax  to  the  city,  in  paying  the  interest 
on  its  bonds,  impaired  the  contract  in  the  bonds.'^- 
The  North  Carolina  constitution  of  1868,  exempting 
a  debtor's  property  from  levy,  impaired  the  obliga- 

64  Home  V.  Rouse,  8  Wall.  430.        go  Cent.  R.   R.  v.   Georgia,  92 

65  Wilmington  R.  R.  v.  Reid,    U.  S.  665. 

13  Wall.  264.  to  Farrington  v.  Tenn.,  95  U. 

66  White  V.  Hart,  13  Wall.  646.  S.  679. 

67  Pac.   R.  R.   V.  McGuire,   20  tin.  J.  v.  Yard,  95  U.  S.  104. 
Wall.  36.  72  Murray  v.  Charleston,  96  U. 

68  Board  v.  McComb,  92  U.  S.  S.  432. 
531. 


132  POLICE    POWER    OVER    CORPORATIONS. 

tion  of  prior  contracts/^  The  revenue  law  of  Illinois 
of  1872  impaired  the  charter  of  the  Northwestern 
University  for  the  exemption  of  its  property  from 
taxationJ^  The  act  of  Virginia  as  to  deduction  of 
taxes  from  coupons  on  its  bonds  presented  for  pay- 
ment, impaired  the  obligation  of  the  contract  of  the 
State  with  the  bondholders,  when  applied  to  coupons 
separated  from  bonds  issued  under  the  previous  fund- 
ing act  J^  The  act  of  Wisconsin  of  1872,  in  regard  to 
the  recovery  of  interest  upon  interest,  impaired  the 
obligation  of  prior  contracts. '^^  The  taxing  laws  of 
Louisiana  for  New  Orleans  impaired  the  contract  in 
the  charter  of  an  asylum  exempting  it  from  taxa- 
tion J"''  The  act  of  Louisiana  of  1877,  repealing  a  pro- 
vision of  the  Revised  Statutes,  impaired  the  obliga- 
tion of  prior  judgmentsJ^  The  acts  of  Virginia  of 
1882  and  1884  impaired  the  contract  of  the  State  in 
the  funding  act  of  1871.^^  The  ordinance  of  New 
Orleans  of  1881,  authorizing  the  Louisiana  Light 
Co.  to  furnish  New  Orleans  with  gas,  im- 
paired the  charter  contract  with  the  New  Or- 
leans Gas  Co.®*'  The  New  Orleans  ordinance 
of  1882,  granting  one  Rivers  the  right  to  lay 
pipes  in  the  streets  to  carry  water  from  the  Missis- 

T3  Edwards  v.  Kearzey,  96  U.  '^~  Asylum  v.  N.  Orleans,  105  U. 

S.  595.  S.  362. 

74  University  v.  People,  99  U.  ^s  Nelson  v.  St.  Martin,  111  U. 

S.  309.  S.  716. 

T5  Hartman  v.  Greenhow,  102  "o  Va.   Coupon   Cases,    114   U. 

U.  S.  672.  S.  269. 

7G  Koshkonong  v.  Burton.  104  so  N.  O.  Gas  Light  Co.  v.  La. 

U.  S.  G68.  Light  Co.,  115  U.  S.  550. 


POLICE    POWER    OVER    CORPORATIONS.  133 

sippi  to  the  St.  Charles  Hotel,  impaired  the  charter 
of  the  New  Orleans  Water  Works  Co.^^  The  statute 
of  Tennessee,  subjecting  the  property  of  a  railroad 
corporation  to  taxation,  impaired  the  contract  con- 
tained in  an  exemption  clause  of  the  company's  char- 
ter.^^  The  Supreme  Court  of  Michigan  sustained  the 
provision  of  the  charter  of  the  Michigan  Central  R. 
R.  Co.  of  1846,  with  regard  to  the  power  of  the  cor- 
poration to  fix  its  own  rates,  and  refused  to  direct 
the  issue  by  the  company  of  what  were  called  Family 
Mileage  Tickets  under  an  enactment  of  the  Legisla- 
ture of  Michigan,  thus  enforcing  in  the  fullest  man- 
ner the  provision  of  a  railroad  charter  as  a  contract, 
and  following  the  N.  O.  Gaslight  case.^^  It  is,  how- 
ever, to  be  noted  that  rights  under  legislative  and 
municipal  contracts  are  subject  to  reasonable  regula- 
tion as  to  their  use.^^ 

The  foregoing  cases,  selected  from  a  great  number, 
illustrate  the  development  of  the  law  respecting  the 
police  power  over  corporations.  These  cases  also 
necessarily  hold  that  the  Legislature  which  makes  a 
grant  or  contract  has  the  authority  or  power  to  make 
it  on  behalf  of  the  State.  It  is  held  that  the  Legis- 
lature confers  franchises  under  the  power  delegated 

81  N.  0.  W.  W.  Co.  V.  Rivers,  City  v.  Walla  Water  Co.,  172  U.S. 
115  U.  S.  674.  84  Laclede  etc.  Co.  v.  Murphy, 

82  M.  &  0.  R.  R.  V.  Tenn.,  153  170  U.  S.  75.  This  is  so  because 
U.  S.  486.  public  bodies  clothed  with  legis- 

83  Pingree  v.  M.  C.  R.  R.,  118  lative  power  cannot  part  with 
Mich.  314.    See  also  Walla  Walla  their  functions. 


134  POLICE    POWER    OVER    CORPORATIONS. 

by  the  people.  Chief  Justice  Shaw*^  said  that,  in 
addition  to  the  law-making  power,  the  Legislature, 
as  the  representative  of  the  whole  people,  possesses 
authority  to  control  and  regulate  public  property 
and  public  rights,  to  grant  lands  and  franchises,  to 
stipulate  for  the  purchase  of,  and  to  obtain,  all  such 
property,  privileges,  easements  and  improvements 
as  may  be  necessary,  or  useful,  to  the  public,  and  to 
bind  the  community  by  their  contracts  therefor;  and, 
generally,  to  regulate  all  public  rights  and  interests; 
that  the  established  government  of  the  State,  acting 
through  the  Legislature  for  the  time  being,  must  de- 
termine whether  it  is  best  to  provide  for  these  ends 
by  public  funds,  or  to  procure  funds  from  individuals, 
who  are  to  be  reimbursed  by  tolls;  that  the  Legisla- 
ture, in  order  to  provide  for  changes  in  the  condition 
of  things  resulting  from  progress  of  time,  may  re- 
serve the  power  to  reduce  tolls  and  the  right  to  re- 
purchase franchises;  that  where  contracts  have  been 
made  by  the  Legislature  in  respect  to  such  matters, 
upon  consideration  of  an  equivalent  public  benefit, 
and  where  the  grantees  have  advanced  their  money 
to  the  public  upon  the  faith  of  these  contracts,  the 
State  is  bound  by  the  plain  principles  of  justice,  faith- 
fully to  respect  all  grants  and  rights  thus  created 
and  vested  by  contract.  He  declared  that  these  prin- 
ciples are  thoroughly  established.    Judge  Shaw  cited 

85  B,  &  L.  R,  R.  V.  S.  &  L.  R.    R.,  2  Gray  1. 


POLICE    POWER    OVER    CORPORATIONS.  135 

the  opinion  of  Cliief  Justice  Parker  of  New  Hamp- 
shire.®^ 

The  judicial  decisions  are  that  the  power  of  cor- 
porations organized  under  legislative  statutes  is 
such,  and  only  such,  as  the  statutes  confer,  conceding 
the  rule  applicable  to  all  statutes  that  what  is  fairly 
implied  is  as  much  granted  as  what  is  expressed. 
The  charter  is  the  measure  of  the  powers  of  the  arti- 
ficial person,  and  the  enumeration  of  its  powers  im- 
plies the  exclusion  of  all  others.^''^ 

The  Federal  judges  have  considerably  restricted 
the  power  of  Legislatures  to  make  contracts.  They 
hold  that  there  can  be  no  contract  and  no  irrepeal- 
able  law  upon  certain  governmental  subjects,  declar- 
ing that  all  legislative  acts  concerning  the  public  in- 
terests are  necessarily  public  laws,  and  that  every 
succeeding  Legislature  possesses  the  same  jurisdic- 
tion and  power  as  its  predecessor  with  respect  to  re- 
peal and  modification;  and  that  it  is  vital  to  the 
public  interests  that  each  Legislature  should  be  com- 
petent at  all  times  to  do  whatever  the  varying  cir- 
cumstances and  present  exigencies  may  require.®^ 

An  illustration  of  the  extreme  liberality  of  con- 
struction of  the  reservation  clause,  commonly  in- 
serted in  charters  for  the  last  generation,  and  of  the 
control  over  corporations  exercised  by  the  State,  is 

86  Piscataqua  Bridge   Case,   7       ss  Newton   v.    Commissioners, 
N.  H.  69.  100  U.  S.  548. 

87  Thomas  v.  R.  R.  Co.,  101  U. 
S.  71. 


236  POLICE    POWER    OVER    CORPORATIONS. 

found  in  some  recent  Federal  eases.^^  In  the  Green- 
wood case,  the  State  of  Massachusetts  had  repealed 
the  charter  of  a  street  railway  company,  and  trans- 
ferred its  franchises  and  tracks  to  another  company. 
The  first  company  had  been  organized  under  an  act 
of  1867.  By  an  act  of  1872,  the  new  company  was 
authorized  to  run  its  tracks  in  the  same  streets  and 
over  the  same  ground  covered  by  the  tracks  of  the 
first  company,  and  to  take  possession  of  the  tracks 
of  that  company,  or  of  any  other  company,  on  pay- 
ment of  compensation.  Upon  a  bill  filed  by  the  first 
company  it  was  declared  that  the  second  statute 
would  impair  the  obligation  of  the  contract  under 
the  first  statute,  except  for  the  general  reservation 
of  the  right  of  repeal,  at  the  pleasure  of  the  Legisla- 
ture, in  the  general  statute  of  Massachusetts  of  1831; 
and  that,  inasmuch  as  the  second  statute  provided 
compensation  for  the  property  of  the  extinct  corpor- 
ation taken  by  the  new  corporation,  the  second  act 
was  not  unconstitutional,  and  must  be  sustained. 

Mr.  Justice  Story,  in  his  concurring  opinion  in  the 
College  case,  suggested  that  the  power  to  control  or 
destroy  corporate  rights  might  be  reserved  by  the 
Legislature  in  the  grant  itself  of  a  charter  to  the  cor- 
poration. This  suggestion  afterwards  was  very  gen- 
erally acted  upon  by  the  States,  and  the  Massachu- 
setts act  of  1831  cited  in  the  Greenwood  case  above 
is  an  instance  of  the  way  in  which  the  States  have 

89  Greenwood  v.   Freight  Co.,   v.  Hamilton,  146  U.  S.  258,  270. 
105  U.  S.  13;  Hamilton  Gas  Co. 


POLICE    POWER    OVER    CORPORATIONS.  137 

adopted  Judge  Story's  suggestion.  The  importance 
of  this  reservation  cannot  be  overestimated.  During 
the  period  between  the  adoption  of  the  constitution 
of  Massachusetts  and  the  adoption  of  the  Federal 
Constitution  only  one  corporation  was  created  by 
that  State,  which  was  then  nearly  foremost  in  wealth 
and  population.  A  hundred  years  later  four-fifths 
of  the  business  of  the  country  is  done  by  corpora- 
tions, and  they  now  hold  four-fifths  of  the  property 
of  the  country,  as  said  by  Mr.  Justice  Field.^*' 

In  Pennsylvania,  Illinois,  Missouri,  New  York  and 
Michigan  acts  have  been  passed  for  securing  the  rep- 
resentation of  minority  stockholders  upon  boards  of 
directors  of  corporations.  It  has  been  contended  that 
the  power  of  the  majority  of  the  stockholders  to  elect 
ail  the  directors,  and  so  to  fully  control  the  corpor- 
ation, is  a  vested  right  of  property  secured  by  the 
U.  S.  Constitution  against  the  interference  of  the 
State,  and  this  proposition  was  considered  in  Penn- 
sylvania,^^ and  the  proposition  was  sustained  upon 
the  authority  of  the  College  case.  And  it  was  held  by 
the  judges  of  Pennsylvania  that  the  statute  could  not 
be  applied  to  a  corporation  organized  before  the  time 
of  the  adoption  of  the  statute  unless  the  statute 
should  be  accepted  by  the  existing  corporation.  Sub- 
stantially the  same  doctrine  was  held  in  Missouri.^- 

90  134  U.  S.  742.  Pa.  St.  518;  Baker's  Appeal,  109 

91  Hays  V.  Commonwealth,  82    Pa.  St.  468. 

92  State  V.  Greer,  78  Mo.  188. 


138  POLICE    POWER    OVER    CORPORATIONS. 

In  Michigan'-*^  it  was  determined  that  the  minority 
stockholders'  statute  would  apply  to  such  a  corpor- 
ation as  the  Michigan  Mutual  Life  Insurance  Com- 
pany, because  the  reservation  in  the  constitution  of 
Michigan  of  power  to  amend  or  alter  charters  au- 
thorizes any  reasonable  amendment  which  does  not 
defeat  or  essentially  impair  the  object  of  the  grant. 
The  Michigan  judges  also  observed  that  they  adopted 
the  Massachusetts  doctrine  in  regard  to  the  interpre- 
tation of  the  reservation  power.^*  The  judges  in 
Michigan  also  declare  that  the  inquiry  should  be 
whether  the  corporation,  alleged  to  be  affected  by 
any  particular  amendment  under  the  reserved  power, 
is  or  is  not  a  corporation  whose  business  is  affected 
by  a  public  interest;  and  they  said  that  the  public 
is  interested  in  the  proper  control  of  life  insurance 
corporations  whose  income  is  drawn  from  the  public, 
and  the  management  of  whose  affairs  affects  the 
public  as  well  as  the  stockholders.  And  the  Michi- 
gan judges  cited  a  large  number  of  cases  in  which 
the  power  to  alter,  amend  or  repeal  charters  has  been 
exercised. 

The  disposition  of  the  judges  in  the  States  where 
the  minority  stockholders'  statute  exists  seems  to  be 
to  sustain  the  statute.  Certainly  the  statute  changes 
the  law  which  has  existed  for  five  hundred  years  in 
regard  to  the  power  of  the  majority  of  the  stockhold- 
ers.   This  statute  is  a  good  illustration  of  the  ten- 

93  Atty  Gen.  v.  Looker,  111  »*  Parker  v.  R.  R.,  109  Mass. 
Mich.   498.  506. 


POLICE    POWER    OVER    CORPORATIONS.  139 

dency  of  the  State  Legislature  to  exercise  control 
over  corporate  affairs,  and  the  sustaining  of  the  stat- 
ute by  the  judges  is  an  instance  of  marked  develop- 
ment of  the  law. 

The  property  of  corporations,  including  their  fran- 
chises, may  be  taken  for  public  use  under  the  power 
of  eminent  domain,  on  making  due  compensation. 
This  power  is  closely  allied  to  the  police  power.  It 
is  also  held  that  franchises  are  property  and  are  tax- 
able.^^ 

As  before  stated,  the  prerogatives  of  the  crown 
and  Parliament,  at  the  Revolution,  devolved  upon 
the  people  and  the  States,  and  remained  with  them, 
except  so  far  as  partially  delegated  to  the  Federal 
government  or  limited  by  State  constitutional  pro- 
visions.^ The  will  of  the  people  is  made  known  by 
legislative  enactments,  and  such  enactments,  when 
passed  under  the  police  power,  are,  in  general,  sus- 
tained by  the  judges  if  no  constitutional  limitation 
is  violated.  It  is  laid  down  by  the  Federal  Supreme 
Court-  that  there  never  has  been  any  difference  of 
opinion  among  the  judges  of  the  Federal  Supreme 
Court  as  to  the  doctrine  that,  whenever  any  business 
is  affected  with  a  public  interest,  that  business  be- 
comes subject  to  legislative  control,  in  all  respects 
necessary  to  protect  the  public  against  danger,  in- 

95  West   River   Bridge   Co.   v.  384;    Mormon  Church  v.  U.  S., 

Dix,    6   How.    507;     Mr.    Justice  136  U.  S.  57. 

Bradley,  Calif.  Pac.  Ry.  127  U.  2  Georgia  R.  R.  v.  Smith,  128 

S.  1,  41.  U.  S.  174.  180. 

1  Fontain  v.  Ravenel,  17  How. 


240  POLICE    POWER    OVER    CORPORATIONS. 

justice  or  oppression;  and  in  that  case  the  judges 
held  that  the  act  of  1833,  giving  the  railroad  com- 
pany an  exclusive  right  of  transportation,  with  a  cer- 
tain limitation  of  charges,  did  not  create  a  contract 
exempting  the  corporation  from  the  duty  of  reason- 
able requirements,  as  to  rates,  made  by  the  Georgia 
State  Railroad  Commission  in  1879. 

Municipal  corporations  possess  many  powers  by 
necessary  implication,  e.  g.,  that  of  taxation.^  But 
the  power  to  establish  rates  of  street  car  fare  must 
be  expressly  conferred.^  Where  a  city  ordinance  pre- 
scribed a  five  cent  fare,  or  a  street  railway  company, 
and  the  Legislature,  subsequently,  fixed  a  three  cent 
fare,  it  was  held  that  the  municipality  cannot  make 
a  contract  which  would  prevent  the  Legislature  from 
regulating  the  fare.^  But  the  Federal  court  held  that 
the  police  power  of  Indiana  is  not  to  be  applied  as 
against  a  charter  agreement  with  that  State  which 
covers  the  matter  of  rates.® 

It  was  finally  determined  that  a  street  franchise, 
or  easement,  from  a  municipality,  is  not  restricted, 
in  duration,  to  the  term  of  the  corporate  life  of  the 
conferree  company^    Power  in  the  municipality  to 

3  U.  S.  V.  N.  Orleans,  98  U.  S.  e  Cent.  T.  Co.  v.  Cit.  etc.  Co., 
381.  82  Fed.  1;  Indianapolis  etc.  Co. 

4  Old  Colony  Trust  Co.  v.  At-  v.  C.  R.  Co.,  83  Fed.  529.  Here 
lanta,  83  Fed.  39;  S.  C.  (U.  S.  is  a  conflict  between  the  Indiana 
App.),  88  Fed.  859.  See  also  C,  S.  Court  and  the  Federal  Courts 
B.  &  Q.  R.  R.  V.  State,  47  Neb.  in  that  State. 

549.  7  Detroit  etc.   Ry.   Co.  v.  De- 

5  Indianapolis  v.  Navin,  47  N.  troit,  22  U.  S.  App.  570,  S.  C.  64 
E.  Rep.  525.  Fed.   628,   60  Fed.   161,  56  Fed. 


POLICE    POWER    OVER    CORPORATIONS.  141 

grant  an  exclusive  privilege  in  its  streets  must  be 
explicit!}^  conferred  by  the  legislative  and  must  be 
indispensable  to  the  declared  object  of  the  privilege.^ 

Yv'henever  the  doctrine  of  the  College  case  in- 
fringes upon  the  police  power  of  the  State,  in  gen- 
eral, the  judges,  as  in  the  Chicago  Nuisance  case,  the 
Mississippi  Lottery  case,  and  the  Massachusetts 
Brewery  case,  have  upheld  the  use  of  the  police  pow- 
er; and  whenever  the  business  is  determined  to  be 
of  a  public  character,  the  exercise  of  the  police  power 
is  sustained  by  the  judges. 

Corporate  bodies  did  not,  at  common  law,  enjoy 
the  privilege  of  inviolability  of  franchises,  laid  down 
in  the  College  case,  and  they  do  not  now  enjoy  that 
privilege  in  the  mother  country.  The  English  uni- 
versity corporate  bodies  have  always  been  regarded 
as  under  parliamentary  control,  and  from  time  to 
time  Parliament  has  introduced  changes  into  them, 
and  into  other  endowed  charities  far  greater  than  the 
State  of  New  Hampshire  sought  to  impose  upon 
Dartmouth  College.  The  charter  of  that  great  com- 
mercial corporation,  the  East  India  Company,  which 
governed  many  millions  of  people,  was  several  times 
altered  by  Parliament,  and  finally,  in  1858,  five  years 
after  its  charter  had  been  renewed,  the  company  was 
deprived  of  its  franchise,  not  on  any  ground  of  for- 
feiture, but  merely  as  a  matter  of  legislative  discre- 
tion. 

867  and  54  Fed.  1.  See  also  Peo-  s  Cit.  St.  Ry.  v.  Detroit  Ry., 
pie  V.  O'Brien,  111  N.  Y.  1.  171  U.  S.  68. 


142  POLICE    POWER    OVER    CORPORATIONS. 

It  is  quite  certain  that  corporation  franchises  in 
17G9,  when  Dartmouth  College  was  founded,  were 
not  held  in  England  as  private  property,  but  as  politi- 
cal privileges.^  The  reservation  clause  now  always 
used  has  simply  set  us  back  upon  the  common  law 
ground,  existing  before  the  College  case  was  decided. 

There  never  has  been  any  agitation  towards 
amending  the  contract  clause  of  the  Federal  Con- 
stitution on  account  of  the  College  case;  but  the  14th 
amendment  has  extended  the  protection  of  that  Con- 
stitution to  all  other  privileges  and  immunities  con- 
cerning life  and  property,  existing  under  the  laws 
cf  the  States,  as  well  as  to  contracts  within  the 
States. 

Of  course  regulation  of  corporations  under  the 
police  power  must  not  be  colorable,  and  there  must 
be  no  attempt  to  repeal  or  amend  the  charter  by  any 
legislation  not  had  in  good  faith.^^  The  State  may 
enforce  inspection  of  the  affairs  of  a  corporation  for 
the  purpose  of  ascertaining  whether  they  perform 
their  duty  to  the  public.^^  In  the  exercise  of  the 
police  power,  the  Legislature  may  adopt  such  regula- 
tions as  will  protect  the  community  from  losses  inci- 
dent to  the  business  conducted  by  corporation,  for 
the  purpose  of  protecting  the  public. 

Corporations  of  one  State,  for  example  insurance 

9  Burke's  Works,  Bohn's  Ed.    Micli.  140;  Com.  v.  Penn.  Canal 
176;    8  Am.  L.  Rev.  233.  Co.,  66  Pa.  St.  41. 

10  People  V.  P,  R.  Co.,  9  Mich.       n  Com.  v.  F.  &  M.  Bank,  21 
285;    Detroit    v.    P.    R.    Co.,    13    Pick.  542;   Ward  v.  Farwell,  97 

III.  693. 


POLICE    POWER    OVER    CORPORATIONS.  143 

companies  not  engaged  in  interstate  commerce,  are 
not  entitled  to  claim  the  right  to  transact  business 
in  any  other  State,  as  of  course.  If  allowed  to  ex- 
ercise their  powers  in  any  other  State,  it  must  be 
upon  such  conditions  as  that  other  State  may  pre- 
scribe.^- 

We  have  already  referred  to  the  regulation  of  rail- 
road companies.  The  variety  of  regulations  of  those 
companies  is  such  as  to  forbid  any  descent  into  par- 
ticulars. The  principles  applicable  to  the  regulation 
of  those  companies  are  the  same  applicable  in  all 
cases  of  the  exercise  of  the  police  power,  and  the 
business  of  a  railroad  company  is  so  connected  with 
the  business  of  the  whole  community  as  to  be  pecu- 
liarly subject  to  minute  control  by  the  States;  and 
in  the  judicial  decisions,  the  judges  have  not  been 
disposed  to  limit  very  strictly  the  exercise  of  the 
police  power  over  railroad  corporations.  The  reason- 
ableness of  such  regulations  is,  however,  undoubt- 
edly a  judicial  question.  The  method  of  the  exercise 
of  the  police  power  with  respect  to  railroads  by  the 
States  is  in  general  by  creating  commissioners  who 
give  their  entire  attention  to  an  inspection  of  the 
management  of  the  railroads  within  the  State. 

The  State  may  invoke  the  judges  to  compel  the 
exercise  by  railroad  corporations  of  the  public  func- 
tions with  which  they  are  clothed.  The  true  character 

12  Paul  V.   Va.,   8  Wall.   168;  elude  anj' corporation  of  anoth- 

Hooper  v.  Calif.,  155  U.  S.  652;  er  State   not  in  the   service  of 

Pembina  etc.  Co.  v.  Penn.,  125  the  Federal  government,  or  not 

U.  S.  1,  holding  a  State  may  ex-  engaged  in  interstate  commerce. 


144  POLICE    POWER    OVER    CORPORATIONS. 

of  the  roads  of  such  companies  as  public  highways 
was  first  announced  in  N.  Y./^  and  this  doctrine 
was  further  developed  in  the  Federal  Supreme 
court/*  and  in  various  cases  where  the  w^rit  of  man- 
damus has  been  made  use  of.  The  writ  of  mandamus 
has  been  awarded  to  compel  a  company  to  operate 
its  road  as  one  continuous  line/^  to  compel  the  run- 
ning of  passenger  trains  to  the  terminus  of  the 
road,^^  to  compel  the  company  to  make  fences  and 
ca ttle- guards,^  "^  to  compel  it  to  build  a  bridge,^  ^  to 
compel  it  to  construct  its  road  across  streams,  so  as 
not  to  interfere  with  navigation,^  ^  to  compel  it  to 
run  daily  trains,^°  to  compel  the  delivery  of  grain  at 
a  particular  elevator,^^  to  compel  the  completion  of 
the  road,--  to  compel  the  grading  of  its  track  so  as 
to  make  crossings  convenient  and  useful-^  to  compel 
the  re-establishment  of  an  abandoned  station,^*  to 
compel  the  replacement  of  a  track  taken  up  in  vio- 
lation of  its  charter,^^  to  prevent  the  abandonment  of 

13  Bloodgood   V.    M.   &   H.    R.  20  Re  N.  B.  etc.  R.  R.,  1  P.  & 
R.  R.,  18  Wend.  9.  B.  667. 

14  Olcott    V.    Supervisors,    16  21  c.  &  N.  W.  R.  R.  v.  People, 
Wall.  678.  56  111.  365. 

15  Union  Pac,  R.  R.  v.   Hall,  22  Farmers'    L.    &  T.    Co.    v. 
91  U.  S.  343.  Henning,  17  A.  L.  Reg.  266. 

16  State  V.  H.  &  N.  H.  Ry.,  29  23  People  v.  D.  &  C.  R.  R.,  58 
Conn.  538.  N.  Y.  152;  N.  Y.  C.  v.  People,  12 

1'  People  V.  Rochester  etc.  R.  Hun.  195,   S.   C.  74  N,  Y.   302; 

R.,  14  Hun.  373,  S.  C.  76  N.  Y.  Indianapolis  R.  R.  v.  State,  37 

294.  Ind.  489. 

18  People  V.  B.  &  A.  R.  R.,  70  24  state  v.  R.  R.,  37  Conn.  154. 
N.  Y.  569.  25  Rex  v.  Severn  &  Wye  Ry. 

19  State  V.   N.   E.   R.   R.   Co.,  Co.,  2  Barn.  &  Aid.  64G. 
9  Richardson  347. 


POLICE    POWER   OVER    CORPORATIONS.  I45 

a  road  once  completed,-^  and  to  compel  a  company 
to  exercise  its  franchise.-^  These  cases  are  all  ex- 
press instances  or  implied  obligations  arising  from 
the  charters  of  the  railroad  companies. 

In  general,  it  may  be  said  that  corporations  are 
within  the  police  power  of  the  State  as  much  as 
natural  persons,  or  the  same  as  natural  persons; 
and  the  State  may  lay  upon  corporations  any  regu- 
lations which  might  be  laid  upon  an  individual.-**  In 
Long's  case  the  judges  said  that  damages  sustained 
by  the  taking  of  the  plaintiff's  land  might  be  as- 
sessed by  the  jury,  notwithstanding  the  company's 
charter  provided  for  viewers  appointed  by  the  judges. 
As  we  have  already  seen,  the  State  may,  under  the 
police  power,  establish  regulations  which  preclude 
corporations  from  the  use  of  powers  conferred  by 
its  charter.  Indeed,  where  there  are  no  constitutional 
prohibitions  the  State  may  control  corporations  to 
carry  out  the  views  of  public  policy  which  may  be  en- 
tertained by  the  particular  Legislature.  We  have 
seen  heretofore  that  the  State  cannot  contract  that  it 
will  not  exercise  the  police  power  to  accomplish  the 
purposes  for  which  government  is  established,  and 
this  rule  applies  to  corporations.^^ 

In  Pennsylvania  the  judges  said  that  the  State 
might  lay  upon  corporations  other  burdens  and  re- 

26  Talcott    V.    Pine    Grove,   1  Union  Co.  v.  Gilfillin,  93  Pa.  95. 
Flippin  144.  yy  Mo.   Pac.   R.   IL   v.   Humes, 

27  People  V.  A.  &  V.  R.  R.,  24  115  U.  S.  512;   R.  R.  v.  Md.,  21 
N.  Y.  261.  Wall.  436;    Holyoke  Co.  v.   Ly- 

28  Long's  Appeal,  87  Pa.  114;  man,  15  Wall.  r25. 


146  POLICE    POWER    OVER    CORPORATIONS. 

strictions  than  those  enumerated  in  the  charter,  and 
that  a  power  or  right  in  the  hands  of  a  corporation  is 
the  same  as  the  identical  power  or  right  in  the  hands 
of  a  natural  person,  and  is  subject  in  like  manner 
to  the  control  of  the  State.^^  This  is  substantially 
the  same  principle  laid  down  in  Beer  Co.  vs.  Mass.,^' 
referred  to  in  the  foregoing  pages.  There  the  broad 
statement  is  that  all  rights  are  held  subject  to  the 
police  power  of  the  State,  and  that,  although  the 
company  was  incorporated  to  manufacture  liquor, 
yet  the  company  must  be  subjected  to  a  later  ac/; 
prohibiting  the  manufacture.  The  judges  said  tha>: 
the  Legislature  could  not  by  any  contract  dives-' 
itself  of  the  power  to  provide  for  the  protection  of 
the  public  health  and  property,  good  order,  and  pub- 
lic morality. 

We  may  remark,  finally,  that  the  Federal  Supreme 
judges  have  said  that  they  were  not  aware  of  any- 
thing peculiar  to  a  franchise  which  can  class  it 
higher,  or  render  it  more  sacred  than  other  property; 
that  a  franchise  is  property,  and  nothing  more;  that 
it  is  its  character  of  property  only  which  imparts 
value  to  a  franchise,  and  which  alone  authorizes  a 
right  of  action  for  its  disturbance  or  its  enjoyment; 
and  that  consequently  a  franchise  occupies  the  same 
position  with  respect  to  the  paramount  duty  of  the 
State  to  promote  the  public  good,  as  does  the  right 

"0  Frankfort  R.   R.   v.   Phila.,        si  97  u.  S.  32. 
58  Pa.  122. 


POLICE    POWER    OVER    CORPORATIONS.  I47 

of  the  citizen  to  the  possession  of  his  lands.^^  And 
the  judges  further  said  that  the  State  might  ex- 
tinguish a  franchise  that  it  had  granted,  upon  the 
English  authority  on  the  subject.^^ 

32  West  etc.  Co.  v.  Dix,  6  How.       33  Governor  etc.  v.  Meredith,  4 
567,  551.  T.  R.  794. 


CHAPTER  VIII. 

LIMITATIONS    ON    THE   POLICE    POWER    ARISING     FROM 
THE    FEDERAL    POWER   OVER    COMMERCE. 

All  means  of  transportation  are  subject  to  the 
police  power  of  the  State,  but  at  the  same  time  that 
power  is  necessarily  controlled  by  the  Federal  Con- 
stitution. Indeed,  lines  of  transportation  which  lie 
wholly  within  a  State  are  necessarily'  subject  to  the 
commercial  power  of  Congress,  because  carriage 
within  the  State  cannot  fail  to  affect  carriage  out- 
side the  State  as  respects  rates.  Accordingly  the 
Federal  Supreme  Court,  developing  some  of  its  early 
decisions,  declared  the  law  of  the  State  of  Illinois, 
forbidding  the  same  rate  for  long  and  short  hauls 
to  be  against  the  Federal  Constitution,  because  that 
law,  when  applied  to  carriage  through  other  States 
as  well  as  Illinois,  governed  the  through  rate.^  The 
doctrine  in  this  case  was  a  necessary  development 
of  that  contained  in  an  early  case,^  decided  in  1824, 
where  the  decision  of  Marshall  furnishes  a  store- 
house of  principles.  The  intervening  cases^  led  up  to 
the  decision  in  the  Wabash  case.  Nevertheless,  as 
stated  in  that  opinion,  there  is  a  commerce  which ' 

1  Wabash.  R.  R.  v.  111.,  118  U.  3  The  State  Freight  Cases,  15 
S.  557.  Wall.  232;  Welton  v.  Mo.,  91  U. 

2  Gibbons  v.  Ogden,  9  Whea-  S.  282;  County  of  Mobile  v. 
ton  1.  Kimball,  102  U.  S.  691. 

143 


FEDERAL    POWER   OVER  COMMERCE.  149 

is  exclusively  within  a  State  and  subject  wholly  to 
State  regulation.  In  a  Michigan  case  the  steamer 
ran  wholly  upon  the  Grand  River,  but  to  carry  goods 
destined  to  points  outside  the  State,  and  was,  there- 
fore, held  subject  to  the  regulation  of  Congress.'* 

Rate  laws  like  that  passed  upon  in  the  Wabash 
case  are  always  defended  as  warranted  by  the  police 
power;  but  the  Federal  Supreme  Court  replies  to  \/ 
this  argument  that,  whatever  may  be  the  nature 
and  reach  of  the  police  power  of  the  State,  it  cannot 
be  exercised  over  a  subject  confided  exclusively  to 
Congress.^  This  was  only  a  restatement  of  Mar- 
shall's holding  in  Gibbons  vs.  Ogden  that  none  of  the 
police  powers  of  the  State  can  be  so  exercised  as  to 
constitute  a  practical  assumption  of  the  powers  of  "^^ 
Congress.  We  may,  therefore,  conclude  that  railroad 
rates  constituting  any  portion  of  carriage  between 
States  cannot  be  fixed  by  the  State  under  the  police 
power.  The  judges  in  Minnesota  and  North  Carolina 
concur  in  this  doctrine.^ 

Any  commerce  which  concerns  more  States  than 
one,  in  the  language  of  Marshall,  is  not  within  the 
police  power  of  the  State,  and  the  State  may  not,  un- 
der cover  of  executing  its  police  power,  substantially 
burden  interstate  commerce,  as  was  stated  in  the 
Husan  case  above.  Nevertheless,  where  the  legis- 
lation is  not  colorable,  but  is  had  in  good  faith,  it 

4  The  Daniel  Ball,  10  Wall.  estate  v.  C.  &  St.  P.,  2  Int. 
557.  Com.  Rep.   519;    Sternberger  v. 

5  R.  R.  V.  Husan,  95  U.  S.  465.    Ry.,  Id.  426. 


150  FEDERAL    POWER    OVER  COMMERCE. 

may  be  exercised  on  all  subjects  affecting  health, 
life  and  personal  safety,  although  indirectly  also 
affecting  interstate  commerce. 

The  first  exposition  of  this  rule  was  in  the  Marsh 
Dam  case,^  where  it  was  laid  down  that  special  local 
facts  and  circumstances  may  restrain  the  principle 
of  the  decision.  The  phrase  "police  power"  is  not 
used  in  the  Wilson  case.  In  that  case,  a  dam,  con- 
structed in  a  malarial  marsh  by  the  State  for  the 
protection  of  the  public  health,  constituted  a  plain 
obstruction  to  interstate  navigation,  and  yet  the 
right  of  the  State  to  build  the  dam  was  sustained. 

In  upholding  the  quarantine  laws  of  Louisiana, 
the  Federal  Supreme  Court  said  that  when  the  ques- 
tion is  whether  the  statute  is  a  just  exercise  of  State 
power,  or  is  intended  by  roundabout  means  to  invade 
the  domain  of  Federal  authority',  the  judges  will 
look  into  the  operation  and  effect  of  the  statute  to 
discern  its  purpose.^  A  State  may  not  enjoin  an- 
other State  from  enforcing  its,  quarantine  laws,  as 
burdening  interstate  commerce.^ 

State  laws  requiring  all  locomotive  engineers  to 
be  licensed,  although  running  trains  between  States 
are  held  to  be  sustainable.^^  The  judges  said  that 
it  has  never  been  doubted  that  the  entire  body  of  law 
within  the  territorial  jurisdiction  of  the  State  is  sub- 


7  Wilson  V.  The  Blackbird  etc.       9  La.  v.  Texas,  176  U.  S.  1. 
Co.,  2  Pets.  245.  lo  R.  R.  Co.  v.  Alabama,  128 

8  Morgan  Co.  v.  La.  Board,  118  U.  S.  96;    Smith  v.  Alabama,  124 
U.  S.  462.  U.  S.  475. 


FEDERAL    POWER    OVER  COMMERCE.  151 

ject  to  change  at  the  will  of  the  Legislature,  except 
as  restrained  by  the  Federal  Constitution;  and  we 
may  add,  of  course,  the  Constitution  of  the  State. 
State  laws  forbidding  the  running  of  any  freight 
trains  within  the  State  on  Sunday,  even  on  interstate 
railroads,  are  upheld.^ ^  A  State  police  regulation  re- 
quiring an  interstate  K.  R.  train  to  turn  aside  and 
stop  at  a  town  because  it  was  a  county-seat,  was  held 
to  interfere  with  interstate  commerce  and  therefore 
to  be  void.^-  Yet  such  a  train  may  be  compelled  to 
stop  at  a  town  on  its  route.^^ 

It  was  held  that  a  Mississippi  steamer,  running 
between  different  States,  was  bound  to  admit  colored 
persons  to  her  cabin  with  whites,  in  conformity  to  a 
State  law  of  Louisiana  passed  in  the  exercise  of  the 
police  power,  which  law  required  such  admission.^* 
The  judges  said  that  it  was  useless  to  try  to  fix  any 
arbitrary  rule,  and  that  matters  of  such  delicacy  be- 
tween Congress  and  the  State  must  be  settled  in  each 
case  upon  a  view  of  the  particular  rights  involved; 
and  added  that  in  such  cases  even  the  members  of 
the  court  concurring  in  a  decison  had  often  done  so 
upon  different  grounds.  Twenty  years  later,^^  a  law 
of  the  same  State  regarding  the  separation  of  colored 

11  Hennington  v.  Ga.,   163  U.    265.     See  Gladson  v.  Minn.,  166 
S.   299.     See  cases  collected  by    U.  S.  427. 

Mr.  Justice  Gray  in  Chicago  etc.  i^  Hall    v.    De    Cuir,  95  U,  S. 

Ry.  V.  Solan,  169  U.  S.  133.  485. 

12  111.  Cent.  R.  R.  v.  111.,  163  is  Plessy  v.  Ferguson,  163  U. 
U.  S.  162.  S.  537. 

13  L.  S.  Ry.  V.  Ohio,  173  U.  S. 


;^52  FEDERAL    POWER    OVER  COMMERCE. 

and  white  persons  into  different  cars,  upon  an  inter- 
state railroad  was  also  sustained.  Mr.  Justice  Brown 
delivered  the  opinion  and  Mr.  Justice  Harlan  dis- 
sented. It  would  seem  quite  clear  that  in  both  the 
Hall  and  the  Plessy  cases,  the  State  laws  were  in 
reality  regulations  of  commerce. 

On  the  contrary,  a  State  law  forbidding  pre- 
cedence in  the  delivery  of  messages,  and  requiring 
delivery  by  messenger  within  one  mile,  was  set  aside 
as  a  regulation  of  commerce.  The  judges  said  that 
under  the  reserved  powers  of  the  State,  designated 
under  the  somewhat  ambiguous  term  "police  pow- 
ers," the  good  order,  peace  and  protection  of  the 
community  may  be  regulated,  but  that  it  must  be 
done  without  encroachment  upon  the  power  vested 
in  Congress.^ ^ 

The  power  of  Congress  to  exercise  control  under 
the  commerce  clause  of  the  Federal  Constitution 
over  all  the  interstate  railroads  of  the  country,  as, 
for  example,  in  requiring  the  use  of  automatic  car 
couplers,  seems  to  be  conceded. 

The  further  right  of  Congress  to  divest  itself  of 
its  power  to  regulate  commerce  and  to  pass  enabling 
acts  permitting  the  exercise  of  that  power  by  the 
States,  has  been  sustained.^'^  The  holding  may  be 
criticised  on  the  ground  that  the  Constitution  having 
confided  the  regulation  of  commerce  to  Congress, 


16  W.  U.  Tel.  Co.  V.  Pendleton,       n  In  re  Rahrer,  140  U.  S.  543. 
122  U.  S.  347. 


FEDERAL    POWER    OVER  COMMERCE.  153 

that  body  cannot  defeat  its  own  power  in  that  regard 
and  confer  it  upon  the  State.  In  the  Eahrer  case, 
the  so-called  Wilson  law  of  Congress  was  sustained, 
which  law  authorized  the  States  to  exclude  intoxi- 
cating liquors,  although  the  subjects  of  interstate 
commerce. 

The  question  of  the  right  of  the  States  to  fix  raib 
road  rates  is  conceded  by  the  cases,  subject  to  judi- 
cial review  as  to  the  reasonableness  of  the  rates. 
This  was  held  in  the  Minnesota  case,^^  and  the  doc- 
trine is  further  developed  in  the  Reagan  case,^^  and 
in  the  Nebraska  case-'^  referred  to  in  another  place. 
In  the  first  case  above  named,  a  law  of  Minnesota 
establishing  a  commission  to  fix  rates,  but  denying 
any  judicial  examination  of  the  reasonableness  of 
the  rates,  was  set  aside  by  the  •Federal  Supreme 
Court.  We  may  observe  that  the  Interstate  Com- 
merce Commission  established  by  Congress  is  not 
only  without  judicial  power,  but  cannot  establish 
rates,  and  its  power  should  be  enlarged. 

The  general  result  of  the  decisions  is  that  State 
police  regulations  may  apply  to  the  instrumentalities 
of  interstate  commerce,  such  as  cars  and  vessels,  the 
equipment  of  either,  and  the  qualification  of  train- 
men and  seamen,  but  that  State  police  regulations 
cannot  extend  to  direct  regulation  of  interstate  com- 
merce.   For  example:  a  steamboat  engaged  in  inter- 

18  Chi.  etc.  Ry.  v.  Minn.,  134    154  U.  S.  362. 

U.  S.  418.  20  Smyth  v. Ames,  169  U.S.  466. 

19  Reagan  v.  F,  L.  &  T.  Co., 


154  FEDERAL    POWER    OVER  COMMERCE. 

state  commerce  may  be  required  by  a  State  to  be 
provided  with  suitable  screens  to  prevent  emission 
of  sparks.21  The  power  of  the  State  to  regulate  the 
instrumentalities  of  interstate  commerce,  is  so  nearly 
allied  to  the  State  power  to  tax  them,  that  it  is  hard- 
ly a  digression  to  briefly  consider  the  latter  power. 
The  corporate  franchises,  property,  business  and  in- 
come of  an  interstate  R.  R.  corporation  may  be  taxed 
by  the  State;  but  this  must  be  done  in  such  a  way 
as  not  to  interfere  with  interstate  commerce.^^ 
Accordingly,  steamboats  engaged  in  such  commerce 
are  taxable  by  the  State.^^  Also,  telegraph  prop- 
erty.^^  Manifest  difficulty  exists  in  the  constitutional 
taxation  of  rolling  stock,  employed  in  different 
States ;  but  the  methods  adopted  by  the  States  have 
generally  been  sustained,  as  not  interfering  with 
the  power  of  Congress  to  regulate  commerce.^^  But 
when  States  have  taxed  interstate  freight,  and  tele- 
graphic dispatches  the  statutes  have  been  set  aside.-^ 
Yet  in  State  Tax  on  Ry.  Gross  Receipts^''  a  statute 
of  Penn.  was  sustained  by  a  course  of  reasoning 
apparently  not  followed  in  the  later  case  of  Fargo  vs. 
Michigan,-^  setting  aside  a  similar  law  of  Michigan. 

21  Burrows   v.   Delta   Co.,   106    141  U.  S.  18;  Marye  v.  B.  &  O. 
Mich.  582,  594.  R.  R.,  127  U.  S.  117;  Pickard  v. 

22  Phil.  S.  S.  Co.  V.  Penn.  122    Pullman  Co.,  117  U.  S.  34. 

U.  S.  326,  345.  26  Case   of  the   State  Freight 

23  Transp.  Co.  v.  Wheeling,  99  Tax,  15  Wall.  232;    Tel.  Co.  v. 
U.  S.  273.  Texas,  105  U.  S.  460, 

24  Western   etc.   Co.   v.   Mass,  27  15  Wall.  284 
125  U.  S.  530.  2s  121  U.  S.  230. 

25  Pullman's  Car  Co.  v.  Penny, 


FEDERAL    POWER   OVER  COMMERCE.  155 

A  tax  upon  gross  receipts  of  a  telegraph  Co.  is  in- 
valid so  far  as  these  receipts  are  derived  from  inter- 
state commerce.-^  The  business  of  transporting 
persons  and  property  between  the  States  is  not  tax- 
able by  the  State,^*^  nor  the  business  of  a  R.  R.  agent 
soliciting  interstate  passenger  traffic,^^  nor  the  keejj- 
ing  of  an  office  in  a  State  by  a  corporation  of  another 
State  engaged  in  interstate  commerce.^^  But  in  an- 
other case  there  was  a  departure  from  this  line  of 
decision,  when  a  tax  on  the  receipts  of  a  R.  R.  de- 
rived from  interstate  transportation  was  sustained 
because  it  was  called  a  tax  on  a  franchise.^^ 

Recurring  to  the. subject  of  the  police  power  over 
transportation  rates  we  observe  that  the  Nebraska 
ease  not  only  holds  that  there  may  be  judicial  review 
in  the  Federal  courts  of  the  reasonableness  of  the 
rates  established  by  States,  but  that  the  existence 
of  a  remedy  by  statute  in  a  State  court  will  not 
prevent  relief  by  injunction  in  a  Federal  court;  and 
that  a  Federal  court  may  enjoin  the  officers  of  a 
State  from  executing  a  State  statute  regarding  rates, 
which  is  held  unconstitutional;  and  that  the  pro- 
ceeding is  not  against  a  State,  within  the  11th 
Amendment  to  the  Federal  Constitution.    This  de- 

29  Ratterman  v.  Tel.  Co.,  127  32  Norfolk  R.  R.  v.  Penn.,  136 
U.  S.  411;  Tel.  Co.  v.  Alabama,  U.  S.  114;  Leloup  v.  Port  of  Mo- 
132  U.  S.  472.  bile,  127  U.  S.  640;   Crutcher  v. 

30  Gloucester     Ferry     Co.     v.  Ky.,  141  U.  S.  47. 

Penn.,  114  U.  S.  196.  33  Maine  v.  G.  T.  Ry.,  142  U. 

31  McCall  V.  Calif.,  136  U.  S.    S.  217. 
104. 


156  FEDERAL    POWER    OVER  COMMERCE. 

cision  seems  to  have  been  made  with  reference  to 
business  wholly  within  the  State,  and  is  therefore 
not  based  upon  the  ground  that  a  question  of  inter- 
state commerce  was  presented.  Under  this  decision, 
the  Federal  court  is  made  the  depository  of  the 
power  to  determine  the  reasonableness  of  railroad 
rates.  The  doctrine  is  still  in  a  state  of  imperfect 
development  and  it  is  readily  seen  that  questions 
of  extreme  difficulty  may  be  presented  in  the  exer- 
cise of  this  power.  Calculations  of  the  value  of 
railroad  property,  and  of  the  traffic  within  the  tribu- 
tary region,  and  of  the  expense  of  managing  the 
property,  and  other  questions  which  might  be  sug- 
gested, must  enter  into  a  decision  as  to  whether  the 
rates  are  confiscatory  or  not;  that  is  to  say,  W'hether 
the  particular  rates  prescribed  prevent  the  company 
from  deriving  a  fair  interest  from  its  investment 
in  addition  to  expenses,  including  interest  on  its 
bonds.  Some  of  these  difficulties  are  hinted  at  in 
the  Michigan  Passenger  Rate  case.^^  The  Federal 
Supreme  Court  rules  that  testimony  should  be  taken 
before  a  Master,  so  that  there  may  be  a  very  full 
presentation  of  facts  before  the  court  for  determin- 
ation on  the  question  of  reasonableness.^^  And  the 
judiciary  will  not  interfere  with  legislative  rates 
unless  they  are  palpably  unreasonable.^^ 

It  has  been  held  that  a  steamer  plying  on  the 

34  Chicago   etc.    Ry.    v.    Well-    kins,  176  U.  S.  167. 

man,  143  U.  S.  339.  se  San  Diego  etc.  Ry.  v.  Nat. 

35  Chicago  etc.  Ry.  v.   Tomp-    City,  174  U.  S.  139. 


FEDERAL    POWER    OVER  COMMERCE.  157 

Pacific  ocean  between  two  ports  of  the  same  State, 
is  nevertheless  under  the  power  of  Congress,  because 
it  must  necessarily  enter  into  relations  with  inter- 
state and  foreign  commerce  upon  that  ocean.^'^  This 
is  a  development  of  the  law,  making  an  advance 
upon  the  case  of  Allen  vs.  Newberry,^^  where  it  was 
held  that  the  power  of  Congress  did  not  extend  to 
a  case  of  contract  of  affreightment  between  a  port 
in  a  State  and  another  port  in  the  same  State,  al- 
though the  vessel  was  a  general  ship  and  bound 
upon  a  voyage  to  a  port  in  another  State. 

Mr.  Justice  Bradley  said^^  that  although  foreign 
corporations  are  subject  to  legitimate  police  regu- 
lations of  the  State,  yet  such  foreign  corporations  as 
carry  on  interstate  commerce  are  within  the  pro- 
tection of  the  commercial  power  of  Congress  and 
cannot  be  impeded  in  the  carrying  on  of  their  busi- 
ness by  State  legislation.  The  judge  tersely  said 
that  in  matters  of  interstate  and  foreign  commerce, 
there  are  no  States.  In  that  case  Congress  had 
authorized  a  New  York  corporation  to  build  piers 
and  bridge  a  river  in  the  State  of  New  Jersey.  The 
latter  State  opposed,  but  its  opposition  was  held 
nugatory. 

As  said  in  Debs's  Case,"*^  the  United  States  govern-  \/^ 
ment  has  jurisdiction  over  every  foot  of  soil  within 
its  territory;    and  Chief  Justice  Taney  said,  "The 

37  Lord  V.  Steamship  Co.,  102       33  Stockton  v.  B.  &  N.  Y.  R. 
U.  S.  541.  R.,  32  Fed.  9. 

38  21  How.  244.  40  158  u.  S.  564. 


]^53  FEDERAL    POWER    OVER  COMMERCE. 

Constitution  of  the  United  States,  and  every  clause 
and  article  in  it,  is  a  part  of  the  law  of  every  State 
in  the  Union,  and  is  the  paramount  law."^^ 

At  an  early  day,  1837,  a  law  of  New  York  re- 
quiring every  vessel  running  from  another  State, 
to  report  prescribed  details  as  to  every  passenger, 
was  sustained  as  a  justifiable  police  regulation.^^ 
This  law  of  New  York  was  quite  clearly  a  regulation 
of  commerce;  but  at  that  time  the  subject  was  al- 
most wholly  undeveloped. 

Later,  in  the  so-called  License  cases,^^  a  State  law 
forbidding  the  sale  of  liquors,  brought  from  another 
State,  without  obtaining  a  license  to  sell  was  upheld 
as  a  legitimate  exercise  of  the  police  power  of  the 
State.  Opinions  were  delivered  seriatim  by  the 
members  of  the  court  and  they  were  extremely  con- 
flicting. 

Not  very  long  after,  in  the  Passenger  Cases,^* 
State  laws  requiring  vessel  masters  to  pay  to  the 
State  health  officer  a  sum  of  money  for  each  pas- 
senger arriving  from  another  State,  was  set  aside 
as  a  regulation  of  commerce,  and  as  not  within  the 
police  power  of  the  State.  Manifestly,  the  State 
laws  discussed  in  the  License  cases  and  in  the  Pas- 
senger cases  were  of  the  same  character,  viz.,  regu- 
lations of  commerce;  although  in  the  earlier  case  the 
State  law  was  overthrown  and  in  the  later  case 
sustained. 

41  Prigg  V.  Penn.,  16  Pet.  628.        «  5  How.  504. 

42  N.  Y,  V.  Miln,  11  Pet.  102.  44  7  How.  283. 


FEDERAL    POWER   OVER  COMMERCE.  159 

The  next  stage  of  development  of  this  subject  is 
found  in  Cooley  vs.  Wardens.^^  Certain  State  laws 
were  sustained  as  local  regulations  and  not  com- 
merce regulations,  and  consequently  as  within  the 
police  power;  and  the  distinction  was  said  to  be 
the  character  of  the  subject  legislated  upon  by  the 
State,  as  national  or  local.  Evidently,  this  is  the 
same  line  of  distinction  long  before  laid  down  by 
Chief  Justice  Marshall  in  the  Black  Bird  Creek  case. 
State  laws  of  inspection  of  articles  brought  into, 
or  sent  out  of,  the  State,  are  not  in  collision  with  the 
power  of  Congress  to  regulate  commerce.^^ 

But  the  ultimate  development  of  the  true  relation 
between  the  police  power  of  the  State  and  the  com- 
mercial power  of  Congress  came  in  the  case  of  Leisy 
vs.  Hardin,^'^  expressly  overruling  the  License  cases'** 
above  referred  to,  which  had  been  decided  nearly 
fifty  years  earlier.  In  Leisy  vs.  Hardin,  the  court 
set  aside  a  State  statute,  passed  in  the  exercise  of 
the  police  power,  forbidding  the  sale  in  the  original 
package  of  liquor  imported  from  another  State,  and 
denied  the  power  of  the  State  to  pass  a  law  which 
is,  in  fact,  a  regulation  of  commerce,  although  pro- 
fessedly passed  in  the  exercise  of  the  police  power. 
This  case  is  the  one  which  led  to  the  enactment  of 
the  Wilson  Law  of  Congress,  so-called,  above  re- 
ferred to,  and  upheld  by  the  court.^^ 

45  Cooley  V.  Wardens,  12  How.  47 135  U.  S.  100. 
299,  1851.  48  5  How.  504. 

46  Patapsco   Guano    Co.   v.   N.  49  Re  Rahrer,  140  U.  S.  543. 
C,  171  U.  S.  345. 


160  FEDERAL    POWER    OVER  COMMERCE, 

In  Leisy  vs.  Hardin,  three  of  the  justices  of  the 
Federal  Supreme  Court  dissented,  in  an  opinion 
drawn  up  by  Mr.  Justice  Gray,  in  which  it  is  de- 
clared that  the  power  of  regulating  the  manufacture 
and  sale  of  liquors  is  wholly  within  the  police  power 
of  the  States,  and  has  no  relation  to  the  movement 
of  goods  from  one  State  to  another  in  the  processes 
of  commerce.  It  was  declared  that  the  License 
cases  had  never  been  overruled  and  ought  to  be  fol- 
lowed, and  that  the  inherent  police  power  of  the 
States,  reserved  to  them  by  the  Constitution,  is  essen- 
tial to  their  existence  as  organized  governments; 
and  that  while  all  statutes  of  a  State  must  give 
way,  if  they  are  repugnant  to  the  national  Consti- 
tution, yet  when  those  statutes  relate  to  the  pro- 
tection of  the  safety,  health  and  morals  of  the  people, 
they  ought  not  to  be  subordinated  to  the  promotion 
of  trade  and  commerce. 

It  thus  appears  that  the  final  and  present  result 
of  the  development  of  the  law  in  the  decisions  of 
the  judges  concerning  the  relation  of  the  police 
power  of  the  State  to  the  commercial  power  of  Con- 
gress is  this:  firstly,  that  the  State  may  regulate 
commerce  in  the  exercise  of  the  police  power  where- 
ever  the  subject  matter  of  the  State  statute  is  local 
in  its  nature  and  circumstances,  and  not  national; 
and  secondly,  the  State  may  regulate  commerce 
where  Congress  may  have  enacted  a  law  conferring 
upon  the  State  the  power  of  making  such  a  regula- 
tion. Congress  thus  abdicating  its  own  constitutional 


FEDERAL    POWER    OVER  COMMERCE.  161 

functions.  Tliis  result  leaves  great  power  in  the 
judges  to  construe  and  apply  the  law  according  to 
the  circumstances  of  the  case;  and  in  the  latest 
case,  that  of  Scott  vs.  Donald,^^  the  statute  of  Con- 
gress authorizing  States  to  enact  regulations  of  com- 
merce, that  is  to  say  the  Wilson  law,  was  held  not  to 
justify  the  so-called  Dispensary  Liquor  Law  of  South 
Carolina,  which  was  enacted  as  a  lawful  exercise 
of  the  police  power  of  the  State,  for  the  reason  that 
the  Dispensary  Law  discriminated  between  State 
and  domestic  commerce,  and  therefore  was  a  regula- 
tion of  commerce. 

The  foregoing  development  of  the  law  may  be 
stated  in  a  different  way.  In  the  License  Cases,  the 
majority  held  that  the  States  could  legislate  on  sub- 
jects of  interstate  commerce  until  Congress  had 
acted  upon  them;  but  the  present  doctrine  is  that 
if  the  subject  is  national  in  its  character,  the  absence 
of  Congressional  legislation  on  that  subject  is  equiv- 
alent to  a  declaration  of  Congress  that,  on  that  sub- 
ject States,  shall  not  legislate.^* 

In  a  recent  case^^  decided  in  the  year  1888,  where 
the  Court  construed  a  liquor  law  of  the  State  of  Iowa 
upon  error  to  the  Supreme  Court  of  that  State, 
the  judgment  of  the  lower  court  was  affirmed,  and 
the  power  of  the  State  to  absolutely  prohibit  the 
manufacture  and  sale  of  liquor  within  its  territory 

50  165  U.  S.  58.  51!  Kidd  v.  Pearson,  128  U.  S. 

51  Bowman  v,  C.  &  N.  W.  R.    1. 
R.,  125  U.  S.  508. 


162  FEDERAL    POWER    OVER    COMMERCE. 

was  sustained,  as  not  against  the  14th  Amendment, 
although  the  statute  provided  that  liquor  should  not 
be  manufactured  even  for  transportation  beyond  the 
limits  of  the  State.  It  was  said  that  this  law  did 
not  undertake  to  regulate  commerce.  In  a  case^^ 
v^here  the  question  was  whether  the  act  of  Georgia 
of  1833  exempted  the  railroad  corporation  from  legis- 
lative interference  with  its  rates  of  charges,  and  it 
was  held  that  the  corporation  was  not  so  exempt. 
The  Court  said  that  the  power  of  regulation  for  the 
security  of  passengers  and  freight,  and  for  the  con- 
venience of  the  public,  and  to  prevent  extortion  by 
unreasonable  charges,  and  favoritism  by  unjust  dis- 
crimination, does  not  amount  to  a  power  of  regu- 
lation of  commerce,  but  is  a  proper  exercise  of  the 
police  power.  In  a  case  from  South  Carolina  it  was 
said  that  such  railroad  legislation  is  not  any  en- 
croachment upon  the  14th  Amendment.  In  that 
case,  the  State  of  South  Carolina  required  the  sal- 
aries and  expense  of  the  Railroad  Commissioners 
to  be  borne  by  the  several  corporations  operating 
railroads  within  the  State;  and  this  provision  was 
sustained.'^* 

In  a.  case  where  interstate  communication  was  un- 
der discussion,  it  was  held  that  a  telegraph  company 
between  States,  occupying  the  streets  of  a  city,  could 
be  subjected  to  proper  regulations  and  supervision 
by  the  city,  with  a  view  to  the  protection  of  persons 

53  Georgia  R.  R.  v.  Smith,  128  54  Charlotte  R.  R.  v.  Gibbes, 
U.  S.  174.  142  U.  S.  393. 


FEDERAL    POWER    OVER  COMMERCE.  1G3 

and  property;  and  that  the  company,  although  en- 
gaged in  interstate  commerce,  could  be  made  to  pay 
the  expense  of  such  regulation  and  supervision;  but 
that  where  the  amount  charged  by  the  city  was 
greatly  in  excess  of  the  necessary  sum,  the  extra 
charge  would  amount  to  a  tax  pure  and  simple,  and 
could  not  be  sustained  as  a  valid  charge.^^  Such  a 
company  may  be  required  to  place  its  wires  under- 
ground.^'^    W.  U.  Tel.  Co.  vs.  New  York,  38  Fed.,  552. 

In  the  case  of  Sanders,^^  it  was  held  that  State 
legislation  on  a  subject  confided  to  Congress,  cannot 
stand,  although  passed  in  the  exercise  of  the  police 
power;  and  that  accordingly  a  law  of  North  Carolina 
forbidding  the  sale  of  seeds  in  packages  not  marked 
in  a  certain  way  was  void  as  applied  to  packages 
imported  from  another  State. 

A  general  proposition  drawn  from  the  foregoing 
cases,  and  others  which  we  have  no  space  to  con- 
sider is,  that  all  State  legislation  operating  directly 
upon  interstate  commerce,  either  by  tax  upon  its 
business,  license  for  its  pursuit  in  particular  chan- 
nels, or  conditions  for  carrying  it  on,  is  void,  for  the 
reason  that  such  legislation  regulates  commerce, 
the  exclusive  power  to  do  which  is  in  Congress;  and 
this  is  so,  although  the  legislation  professedly  oper- 
ates upon  commerce  solely  within  the  State,  if  the 
legislation  directly  affects  exterior  commerce,  and 

55  Phila.  V,  W.  U.  Tel.,  40  Fed.        se  w.  U.  Tel.  v.  N.  Y.,  38  Fed. 
615.  552. 

57  52  Fed.  802. 


1G4  FEDERAL    POWER    OVER    COMMERCE. 

although  it  is  intended  for  the  protection  of  the 
health  and  property  of  the  citizens.  State  legisla- 
tion may  affect  interstate  commerce  in  a  variety  of 
ways  and  yet  be  entirely  valid,  because  the  inter- 
ference produced  by  the  legislation  is  not  direct,  or 
intended.^^ 

Something  must  be  shortly  said  in  regard  to 
waterways.  A  State  under  the  police  power  may 
bridge  and  dam  streams,  although  interstate  com- 
merce may  be  affected  by  such  action  indirectly;  th(^ 
object  of  the  law  not  being  actually  the  regulation  ot 
commerce.^^  And  booms  may  be  placed  in  riveru 
although  interfering  with  navigation.^"  A  State  ma}' 
improve  a  river  and  may  charge  for  the  use  of  the 
improvements,  as  was  held  in  a  case  from  Michigan.^^ 
As  to  ferry  privileges  between  States,  it  was  held  at 
an  early  day  that  the  police  power  authorized  the 
grant  of  such  privilege  by  a  State ;^^  but,  at  the  pres- 
ent time,  this  would  hardly  be  held,  under  the 
reasoning  in  Gloucester  Ferry  Co.  vs.  Pennsyl- 
vania.*'^ 

When  a  river  is  used  for  interstate  commerce,  if 
the  State  permits  the  building  of  a  bridge,  the  ques- 
tion of  its  interference  with  such  commerce,  is  held 
to  be  a  judicial  one,  and  the  action  of  the  State  is 

58  Hopkins  v.  U.  S.,  171  U.  S.  176  U.  S.  167. 

578,  and  cases  cited  by  Mr.  Jus-  ei  Sands  v.   Manistee  Co.    133 

tice  Peckham,  544.  U.  S.  288. 

'^^0  Pound    V.    Turck,   95   U.    S.  62  Fanning     v.     Gregoire,     16 

459.  How.  524. 

GO  Lindsay  etc.  Co.  v.  Mullen,  63  114  u.  S.  196. 


FEDERAL    POWER   OVER  COMMERCE.  165 

reviewable.^^  But  Congress  may  legalize  such  a 
structure,  under  the  Federal  power  over  commerce.®^ 
The  commerce  passing  over  a  bridge  may  be  greater 
than  that  on  the  water  obstructed,  and  until  Con- 
gress takes  action  on  the  subject,  the  State  may 
authorize  the  construction  of  a  bridge.^^  The  judges 
declare  that  the  changed  condition  of  the  country, 
produced  by  the  building  of  railroads,  has  caused  the 
great  inland  rivers  to  be  spanned  by  bridges,  and 
that  they  are  allowable  because  railroads  are  as 
much  highways  of  commerce  as  rivers,  and  all  per- 
sons navigating  the  latter  are  bound  to  avoid  the 
piers  of  bridges  and  may  not  treat  them  as  unlawful 
obstructions.^'^  Mr,  Justice  Grier  said  in  the  Pas- 
saic Bridge  cases,^^  that  Congress  does  not  come  in 
conflict  with  the  police  power  of  a  State,  exercised 
in  bridging  her  own  rivers,  by  establishing  ports  of 
entry  above  the  bridge;  nor  is  spending  money  by 
Congress,  in  improving  river  navigation,  any  as- 
sumption of  the  police  power  over  the  river.®^  Con- 
gress may  authorize  a  private  corporation  to  occupy 
navigable  waters,  and  the  soil  under  them,  within  a 
State,  in  order  to  construct  a  bridge,  notwithstand- 
ing an  act  of  the  State  forbidding  and  protesting^* 

64  Wheeling    Bridge    Case,    13  e?  The  Mohler,  21  Wall.  235. 
How.  518.  cs  3  Wall.  782,  793,  appendix. 

65  Wheeling  Bridge  Case,  13  "»  Willamette  Iron  Bridge  v. 
How.  421.  Hatch,  125  U.  S.  1. 

66  Oilman  v.  Phila.,  3  Wall.  to  Decker  v.  R.  Co.,  30  Fed. 
713;  Cardwell  v.  Bridge  Co.,  113  723;  Penn.  Ry.  Co.  v.  B.  &  N. 
U.  S.  205.  Ry.  Co.,  37  Fed.  129. 


IQQ  FEDERAL    POWER    OVER    COMMERCE. 

We  observe  finally  in  this  regard  that  the  existing 
development  of  the  law  is  that  the  commercial  power 
of  Congress  is  exclusive  of  State  authority  only  when 
the  subjects  on  which  it  is  exerted  are  national  in 
their  character,  because  they  require  uniformity  of 
regulation  affecting  alike  all  the  States;  and  the 
erection  of  a  bridge  within  a  State  over  an  interstate 
river  is  local  in  its  nature;  therefore  the  State  may 
authorize  it  under  its  police  power,  in  the  absence  of 
any  congressional  action  taken  under  the  Federal 
power  over  commerceJ^  This  development  comes 
from  the  Blackbird  Cteek  Marsh  Case  above. 

In  Ry.  Co.  vs.  Backus,'^^  the  act  of  Congress  of  Sept. 
19, 1890,'^^  was  considered  and  upheld.  It  enacts  that 
no  bridge  over  any  navigable  water  of  the  U.  S. 
authorized  by  any  State  shall  be  constructed  until 
the  location  and  plan  of  the  bridge  have  been  sub- 
mitted to  and  approved  by  the  Secretary  of  War. 

This  enactment  renders  practically  obsolete  all 
prior  cases  on  the  subject,  except  as  illustrations. 

There  can  be  no  doubt  that  a  State  may,  by  its 
legislature,  or  through  a  board  of  harbor  commis- 
sioners, establish,  for  the  protection  and  benefit  of 
commerce  and  navigation,  harbor  lines  in  navigable 
waters,  not  inconsistent  with  any  legislation  of  Con- 
gress, limiting  the  building  of  wharves  and  other 
structures  upon  lands  not  already  built  upon.^^ 

"Rhea   v.    Newport   Co.,    50  etc.    Co.,   176   U.   S.   211,   as  to 

Fed.  16.  obstruction  in  rivers. 

72  46  Fed.  216.  74  Prosser  v.  U.  P.  R.  R.,  152 

73  R.  S.,  U.  S.  Supp.  801,  sec-  U.  S.  64. 
tion  7;    See  U.  S.  v.  Bellingliam 


CHAPTER  IX. 

THE   POLICE   POWER   CONCERNING   PROPERTY   IN  BUSI- 
NESS. 

It  remains  to  consider  more  particularly  how  v/ 
rights  of  property  in  business  may  be  restricted  un- 
der the  police  powers  of  the  States,  and  how  far  the 
restrictions  of  the  Federal  Constitution  have  been 
applied  by  the  Federal  Supreme  Court  in  the  devel- 
opment of  the  subject. 

The  student  of  the  cases  will  find  that,  so  far  as  v/ 
the  right  to  maintain  monopolies  is  concerned,  the 
development  of  the  law  has  been  rather  in  favor  of 
monopolies  than  against  them. 

It  is  a  postulate,  as  respects  rights  of  property, 
that  the  right  to  pursue  one's  happiness,  without 
restrictions  established  by  the  police  power — such 
pursuit  of  happiness  to  be  by  carrying  on  some  means 
of  livelihood  by  labor  of  any  kind — is  a  principle 
of  American  liberty.  The  right  to  choose  one's  call- 
ing is  an  essential  part  of  liberty  and  a  calling 
when  chosen,  is  a  man's  property,  says  Mr.  Jus- 
tice Bradley,  diss.,  in  the  Slaughter  House  cases.^ 
Speaking  on  this  subject,  Mr.  Justice  Peckham  quite 
recently  said,  in  Allgeyer  vs.  Louisiana,^  that  the 
right  to  follow  one  of  the  common  occupations  of  life 

116  Wall.  116.  2  165  U.  S.  578. 

167 


1(38  CONCERNING    PROPERTY    IN    BUSINESS. 

is  an  inalienable  right;  and  that  this  statement  is 
covered  by  the  word  "liberty"  as  contained  in  the 
Fourteenth  Amendment;  and  that,  in  the  privilege  of 
pursuing  an  ordinary  calling  and  of  acquiring,  hold- 
ing and  selling  property,  is  embraced  the  right  to 
make  all  proper  contracts  in  relation  thereto.  And  so 
the  court  held  that  a  law  of  Louisiana  which  forbade 
any  person  from  doing  any  act  within  that  State  to 
effect  insurance  in  any  foreign  insurance  company 
which  had  not  complied  with  the  laws  of  the  State 
and  made  him  subject  to  a  fine,  was,  when  applied  to 
a  contract  of  insurance  made  in  the  State  of  New 
York,  a  violation  of  the  Constitution  of  the  United 
States. 

It  is  very  evident  that  the  acts  which  are  com- 
monly called  boycotting,  and  the  like,  upon  the  part 
of  labor  unions,  are  a  deprivation  of  American  lib- 
erty under  the  statements  in  the  case  above  cited, 
and  are  tyrannical  to  the  last  degree.  The  police 
power  is  exercised  for  the  protection  of  business 
through  the  process  of  injunction.^ 

Now,  the  protection  of  liberty  as  above  defined, 
and  rights  of  property  as  part  of  it,  as  against  the 
usurping  acts  of  State  legislatures,  is  a  very  im- 
portant matter,  and  the  law  concerning  monopolies, 

8  Casey   v.   Cincinnati   Union,  Everett,  144  N.  Y,  189;     Coeur 

12  L.  R.  A.  193,  and  note;    Mur-  d'Alene     etc.     Co.     v.     Miner's 

dock  V.  Wallier,   152   Penn.   St,  Union,  51  Fed.  260;    In  re  Debs, 

595;    State  v.  Glidden,  55  Conn,  petitioner,   158   U.   S.  564;     Ar- 

46;      Continental     etc.     Co.     v.  thur  v.  Oakes,  63  Fed.  310. 
Board,  67  Fed.  310;    Reynolds  v. 


CONCERNING    PROPERTY    IN    BUSINESS.  1G9 

as  it  existed  in  England  at  the  time  of  Lord  Coke, 
seems  to  have  been  more  liberal  in  favor  of  the  liberty 
of  the  citizen  than  at  present  in  the  United  States. 
The  so-called  case  of  Monopolies,^  was  where  a  pat- 
ent had  been  granted  to  one  Darcey  to  buy  beyond 
the  seas  all  such  playing  cards  as  he  wished,  and  sell 
them  within  the  kingdom;  and  that  he  and  his 
agents  should  have  the  whole  traffic  in  such  cards, 
and  that  no  other  person  should  have  the  making  or 
dealing  in  playing  cards  within  the  realm.  Suit 
being  brought  against  a  citizen  in  London  for  selling 
playing  cards,  he  pleaded  that,  being  a  free  citizen 
of  the  city,  he  had  a  right  to  do  it;  and  the  court 
held  unanimously  that  the  grant  to  the  plaintiff  of 
the  right  to  the  sole  dealing  in  cards  within  the 
kingdom  was  void  for  two  reasons:  first,  as  a  mo- 
nopoly against  the  common  law,  and,  secondly, 
against  acts  of  Parliament. 

Plainly  a  grant  of  such  exclusive  privileges  is  an 
invasion  of  the  rights  of  others  to  choose  a  lawful 
calling  and  an  infringement  of  personal  liberty.  In 
the  case  of  Davenant  and  Hurdis,^  a  company  of 
merchant  tailors  in  London  made  an  ordinance  that 
any  member  of  the  society  who  should  have  cloth 
dressed  by  a  cloth  worker,  not  a  member,  should  put 
half  his  cloth  to  some  member  upon  pain  of  a  forfeit 
of  10  shillings;  and  the  court  held  that  although  the 
ordinance  was  under  the  charter  of  the  company,  it 

*  11  Rep.  85.  5  11  Rep.  86. 


170  CONCERNING    PROPERTY    IN    BUSINESS. 

was  against  the  common  law,  because  against  the  lib- 
erty of  the  subject,  for  the  reason  that  every  subject, 
by  law,  has  freedom  and  liberty  to  put  his  cloth  to  be 
dressed  by  what  cloth-worker  he  likes.  It  is  e\ident 
that  the  practice  of  union  labor  associations  com- 
pelling employers  to  refrain  from  employing  non- 
union persons  is  against  the  common  law. 

Now,  what  has  the  Federal  Supreme  Court  said  in 
regard  to  the  enactments  of  State  legislatures  grant- 
ing monopolies?  Has  the  court  protected  the  liberty 
of  American  citizens?  Has  the  court  actually  en- 
forced the  Fourteenth  Amendment? 

The  first  case  upon  the  subject  arose  about  four 
years  after  the  adoption  of  the  Amendment,  in  the 
year  1872,  and  is  cited  as  the  Slaughter  House 
cases.^  The  Legislature  of  Louisiana,  in  1869,  created 
a  corporation  and  granted  to  it  the  exclusive  right 
for  twenty-five  years  to  maintain  slaughter  houses 
and  cattle  yards  within  a  district  containing  about 
1,200  square  miles  and  a  population  of  about  300,000 
people,  prohibiting  all  other  persons  from  engaging 
in  the  business,  and  requiring  all  animals  to  be 
brought  to  the  slaughter  house  of  the  corporation, 
and  fixing  certain  fees;  and  the  question  was  whether 
this  was  a  proper  exercise  of  the  police  power  of  the 
State  for  the  health,  comfort  and  welfare  of  the  peo- 
ple of  the  State,  or  w^hether  it  infringed  the  Four- 
teenth Amendment.  A  minority  of  the  court,  consist- 

6  16  Wall.  36. 


CONCERNING    PROPERTY    IN    BUSINESS.  171 

ing  of  the  Chief  Justice  and  Justices  Field,  Swayne 
and  Bradley,  declared  the  law  to  be  void,  as  only 
professedly  a  police  regulation  for  the  promotion  of 
the  public  health,  but  actually  trespassing  upon  the 
liberty  of  the  citizen,  and  creating  an  odious  mo- 
nopoly, preventing  the  citizen  from  exercising  one  of 
the  ordinary  occupations  of  life,  viz.,  the  trade  of  a 
butcher,  and   unreasonable,   arbitrary  and  unjust. 
These  four  judges  declared  that  that  portion  of  the 
law  which  allowed  no  one  but  the  favored  company 
to  build,  own  or  maintain,  slaughter  houses  had  not 
the  faintest  semblance  of  a  police  regulation,  and 
was  an  arbitrary  and  unjust  law,  made  in  the  inter- 
est of  a  few  schemers  to  the  oppression  and  impover- 
ishment of  the  individual.    The  four  judges  further 
said  that  a  more  flagrant  and  indefensible  violation 
of  the  right  of  the  many  or  the  benefit  of  the  few  had 
never  occurred  in  the  legislative  history  of  this  coun- 
try.    The  counsel  against  the  corporation  claimed 
that  the  law  was  a  reproduction  of  the  greatest 
abuses  which  had  existed  in  the  different  countries 
of  Europe,  w^here  the  prying  eye  of  the  government 
followed  the  butcher  to  the  shambles  and  the  baker 
to  the  oven;   where  the  peasant  could  not  cross  the 
river  without  paying  some  nobleman  a  toll;    nor 
take  his  produce  to  market  without  purchasing  leave 
to  do  so;    nor  consume  the  remainder  of  his  grain 
until  he  had  sent  it  to  his  lord's  mill  to  be  ground; 
nor  sharpen  his  tools  on  his  own  grindstone;    nor 
make  wine,  oil  or  cider  at  his  own  press.    The  dis- 


172  CONCERNING    PROPERTY    IN    BUSINESS. 

senting  judges  declared  that  the  Fourteenth  Amend- 
ment struck  at  and  forever  destroyed  such  laws  as 
that  of  Louisiana. 

But  the  Court,  by  a  majority  of  one,  justified  the 
law  as  an  exercise  of  the  police  power  of  the  State. 
They  said  that  the  contrary  conclusion  would  lead 
to  enactments  interfering  with  the  internal  affairs 
of  the  State,  and  would  bring  within  the  power  of 
Congress  the  entire  domain  of  civil  rights  admitted 
to  belong  exclusively  to  the  States  prior  to  the  adop- 
tion of  the  Fourteenth  Amendment;  and  would  trans- 
fer from  the  State  to  the  Federal  government  the 
security  and  protection  of  all  civil  rights,  and  abolish 
the  State  governments  in  everything  but  name,  and 
lead  the  Federal  courts  to  draw  to  their  cognizance 
the  supervision  of  the  State  tribunals  upon  every 
subject  of  judicial  inquiry.    So  the  monopoly  stood. 

If  we  compare  Gulf  Ky.  Co.  vs.  Ellis,^  as  to  classi- 
fication and  equal  protection  by  States,  and  Holden 
vs.  Hardy ,^  we  may  doubt  whether  the  reasoning  of 
the  majority  in  the  Slaughter  House  cases  will  here- 
after be  followed  as  to  police  regulations.  In  Michi- 
gan a  municipality  contracted  with  an  individual 
for  a  public  market  and  that  there  should  be  no  other 
market  within  the  limits  for  ten  years,  and  the  con- 
tract was  held  invalid  as  divesting  the  municipality 
of  a  part  of  its  legislative  a*uthority  and  creating  a 

7  165  U.  S.  150.  « 169  U.  S.  366.  382. 


CONCERNING    PROPERTY    IN    BUSINESS.  173 

monopoly.^  Mr.  Justice  Cooley  cited  the  Darcj  case 
above. 

The  Slaughter  House  cases  lay  down  that  only 
State  action  against  negroes  will  be  held  to  come 
under  the  equal  protection  clause  of  the  Fourteenth 
Amendment.  But  in  Holden  vs.  Hardy  it  is  said 
that  a  majority  of  the  cases  have  turned  upon  en- 
tirely different  discriminations.  So  it  is  said  also  in 
Maxwell  v.  Dow.^^ 

Of  late  years  the  rapid  rise  of  what  are  known  as 
"Trusts,"  or  industrial  combinations,  covering  almost 
every  commodity  and  business,  has  led  to  legislation 
in  about  half  the  States,  called  "anti-trust  laws." 
Such  combinations  have  been  formed  concerning 
light,  heat  and  power,  chemicals,  metals,  shipping, 
railroads,  building  firms,  school  materials,  apparel, 
furniture,  food,  and  many  other  things.  The  Illinois 
anti-trust  law  of  1891  and  the  Texas  law  of  1889  are 
examples  of  such  legislation.  The  Illinois  law  is  en- 
titled, "An  act  to  provide  for  the  punishment  of 
persons,  copartnerships,  or  corporations,  forming 
pools,  trusts  and  combines,  etc."  Much  English 
legislation  in  the  same  direction  was  abol- 
ished by  Parliament  in  1844.  Such  legislation  is 
within  the  scope  of  the  police  power,  and  is  appli- 
cable to  corporations.^^     Such  legislation  has  not, 

9  Gale  V.  Kalamazoo,  23  Mich.  Sugar  Co.,  121  N.  Y.  562;  People 
344.  V.   Chicago   Gas   Trust  Co.,   130 

10  176  U.  S.  581.  111.  268;    People  v.  Standard  Oil 
13  Gibbs  V.  Bait.  Gas  Co.,  130    Co.,  49  Ohio  St.  137. 

U.  S.  396;    People  v.  North  etc. 


174  CONCERNING    PROPERTY    IN    BUSINESS. 

however,  proved  effectual.  In  the  eternal  struggle  be- 
tween the  avarice,  combination,  and  enterprise  of 
individuals,  on  the  one  hand,  and  the  State  on  the 
other,  the  latter  is  seldom  victorious. 

It  is  here  to  be  remarked  that  trust  agreements, 
affecting  business  within  a  State,  but  which,  also, 
directly  and  substantially  regulate  commerce  among 
the  States,  may  be  prohibited  by  Congress,  and  to 
this  extent  the  liberty  of  the  citizen  of  a  State  to  do 
business  is  limited  and  qualified.^^'  An  example  of 
a  business  agreement  which  was  held  not  to  be  sub- 
ject to  prohibition,  as  affecting  interstate  commerce, 
is  found  in  the  Kansas  City  Live-Stock  Exchange 
cases.^^ 

In  Barbier  vs.  Connolly,^^  a  law  which  forbade 
work  in  laundries  during  nights  and  Sundays  in  San 
Francisco  was  sustained.  The  question  was  whether 
this  was  an  arbitrary  spoliation  of  property  and  an 
infringement  of  liberty.  The  court  held  that  the 
ordinance  contemplated  order  and  good  health  and 
was  a  proper  exercise  of  the  police  power.  The 
Supreme  Court  of  Michigan^  ^  sustained  a  law  for- 
bidding barbers  to  work  on  Sunday,  upon  the  ground 
that  the  health  of  the  people  required  that  they 
should  not  work  one-seventh  of  the  time,  without 
regard  to  any  religious  observances.    And  we  have 

14  Addyston  Pipe  &  Steel  Co.        n  113  U.  S.  31. 

V.  U.  S.,  175  U.  S.  211.  12  People  v.   Bellet,   99   Mich. 

15  Hopkins  v.  U.  S.,  171  U.  S.    151. 
578;    Anderson  v.  U.  S.,  171  U. 

S.  604. 


CONCERNING    PROPERTY    IN    BUSINESS.  175 

seen  above  a  State  may  forbid  freight  trains  on  Sun- 
days, even  on  interstate  railroads. 

The  Federal  Supreme  Court  declares  that  the  State 
may,  even  by  retroactive  legislation,  destroy  the  use 
of  property  without  compensation.  The  constitution  of 
Kansas,  in  1880,  forbade  the  manufacture  and  sale 
of  liquor.  A  citizen  named  Mugler,  befare  that  time, 
had  established  a  brewery,  at  a  large  expense,  and 
was  indicted  after  the  constitution  was  adopted  and 
under  a  statute  which  carried  out  the  constitution. 
Mugler  defended  under  the  Fourteenth  Amendment. 
The  Supreme  Court  of  the  State  and  the  Supreme 
Court  of  the  United  States  both  said  that  the  police 
power  was  lawfully  exercised  and  could  be  enforced 
against  persons  who,  at  the  time,  happened  to  own 
property,  the  chief  value  of  which  consisted  in  fit- 
ness for  the  manufacture  and  sale  of  liquor;  and  that 
the  State  was  not  required  to  make  compensation  to 
the  individual  whose  property  was  destroyed.  This 
was  said  not  to  be  taking  property  for  public  use.^^ 

A  case  going  further  still  came  up  from  Pennsyl- 
vania, where  a  law  of  that  State  forbade  the  manu- 
facture and  sale  of  oleomargarine,  although  sold  as 
oleomargarine  and  not  as  butter,  and  not  in  any  way 
passed  off  as  butter.  The  court  said^^  that  if  the 
Legislature  should  invade  rights  of  liberty  or  prop- 
erty  under  the   pretence   of   guarding  the   public 

16  Mugler  V.  Kansas,  123  U.  S.        i"  Powell  v.  Pennsylvania,  127 
623,  1887.  U.  S.  670. 


176  CONCERNING    PROPERTY    IN    BUSINESS. 

health,  the  court  would  give  effect  to  the  Fourteenth 
Amendment ;  but  said  that  when  such  pretence  does 
not  clearly  appear  on  the  face  of  the  statute,  or  from 
facts  judicially  known,  the  action  of  the  Legislature 
is  conclusive.  This  law  in  question,  it  is  submitted, 
was  not  only  an  invasion  of  property  right,  but  class 
legislation.  Later,  a  statute  of  Massachusetts  to  pre- 
vent deception  in  the  manufacture  and  sale  of  imi- 
tation butter  was  sustained,^ ^  as  applying  to  an  arti- 
cle, made  in  Illinois,  and  sent  by  the  manufacturers 
to  Massachusetts,  and  there  sold  in  the  original  pack- 
age, not  as  butter,  but,  distinctly,  as  something 
which  was  not  butter.  The  Chief  Justice  and  Jus- 
tices Field  and  Brewer  dissented.  They  said  that 
the  statute  ought  not  to  stand,  because  it  was  not 
limited  to  substances  intentionally  made  to  deceive 
by  imitating  butter  and  sold  for  a  fraudulent  pur- 
pose. 

It  is  a  remarkable  fact  that  the  Court  of  Appeals 
of  New  York  has  held  views  entirely  opposite  to 
those  of  the  Supreme  Court  of  the  United  States  in 
the  above  cases  of  Mugler,  Powell  and  Plumley.  In 
Wynehamer's  case,^^  the  court  said  that  a  law  to 
suppress  intemperance,  which  destroyed  property 
lawfully  established  before  the  adoption  of  the  law, 
could  not  stand.  So,  where  a  law,  professedly  to 
improve  the  public  health,  forbade  the  manufacture 

18  Plumley  v.  Mass.,  155  U,  S.  !»  Wynehamer  v.  People,  13  N. 
461.  Y.  378. 


CONCERNING    PROPERTY    IN    BUSINESS.  177 

of  cigars  in  tenement  houses,  it  was  held  to  be  an 
arbitrary  interference  with  personal  liberty  and  pri- 
vate property.^^  The  Michigan  court  discussed  that 
case  in  sustaining  a  statute  requiring  emery  wheels 
to  be  provided  with  blowers  to  carry  away  the  dust.-^ 
In  another  ]S^.  Y.  case^-  an  act  to  prevent  deception  in 
dairy  products,  which,  however,  actually  forbade  the 
manufacture  and  sale  of  any  substitute  whatever  for 
butter,  however  plainly  and  fairly  held  out  by  the 
seller  not  to  be  butter,  was  set  aside  as  transgressing 
both  the  New  York  and  Federal  constitutions.  The 
court  said  that  it  was  the  fundamental  right  of  every 
citizen  to  follow  a  lawful  industrial  pursuit,  not  in- 
jurious to  the  community,  in  order  to  earn  a  liveli- 
hood. In  a  still  later  New  York  case,  where  the 
Federal  case  of  Powell  was  cited,  and  brought  to  the 
attention  of  the  court,  and  in  which  Mr.  Justice 
Peckham,  now  a  member  of  the  Federal  Supreme 
Court,  delivered  the  opinion,^^  a  law  of  New  York 
was  held  not  to  be  a  valid  exercise  of  the  police 
power  which  enacted  that  no  article  of  food  should 
be  sold  together  with  a  premium  free  to  the  pur- 
chaser. Gillson  had  sold  two  pounds  of  coffee  and 
given  away  a  teacup  and  saucer  with  the  coffee,  and 
was  indicted,  but  discharged.  The  New  York  court,^* 
Mr.  Justice  Peckham  dissenting,  and  Mr.  Justice 

20  Matter  of  Jacobs,  98  N.  Y.       23  People  v.  Gillson,  109  N.  Y. 
98.  389. 

21  People  V.  Smith,  108  Mich.       24  People  v.   Walsh, H   N.    Y. 
531.  S.  R.  554.    /y  7  ^  if    / 

22  Marx's  Case,  79  N.  Y.  377.  '  ^       -  '.       • 


178  CONCERNING    PROPERTY    IN    BUSINESS. 

John  C.  Gray  also  dissenting,  followed  the  decisions 
of  the  Federal  Supreme  Court  with  regard  to  the 
legislation  of  the  State  fixing  prices  where  the  prop- 
erty was  affected  with  a  public  interest,^^  and  con- 
cerning State  regulation  of  grain  elevators  and  ware- 
houses maintained  by  private  individuals  having  no 
franchise. 

But  in  the  latest  case  on  the  subject,^^  the  Federal 
Supreme  Court  practically  overrules  the  Powell  case 
and  the  Plumley  case  above,  as  is  shown  by  the 
judges  dissenting  in  the  case.  Mr.  Justice  Peckham 
delivered  the  majority  opinion. 

A  law  of  the  State  of  New  Hampshire  prohibiting; 
the  sale  of  oleomargarine  unless  colored  pink,  wan 
held  void  as  to  the  article  brought  into  New  Hamp 
shire  from  Illinois.^^ 

In  Michigan-^  it  was  doubted  whether  the  use  and 
manufacture  of  oleomargarine  could  be  prohibited » 
but  such  prohibition  has  been  sustained  by  many 
courts,  generally  as  health  regulations.^^  Th(y 
Federal  government  may  regulate  the  sal(» 
of  oleomargarine  for  purposes  of  Federal  tax- 
ation without   infringing  on   the  police  power  of 

25  2  Munn  v.  111..  94  U.  S.  113;  28  n.  W.  Mfg.  Co.  v.  Judge, 
Brass  v,   N.   Dakota,  150  U.   S.    58  Mich.  381. 

391;     Budd  v.  N.   Y.,  143  U.  S.  29  Palmer   v.    State,   39     Ohio 

517.  St.  236;    Waterbury  v.  Newton, 

26  Schollenburg  v.  Penn.,  171  50  N.  J.  L.  534;  State  v.  Ad- 
U.  S.  1,  reversing  the  same  case  dington,  77  Mo.  110;  Butler  v. 
under  the  name  of  Com.  v.  Chambers,  36  Minn.  69;  McAl- 
Paul,  170  Pa.  St.  284.  lister  v.  State,  72  Md.  396. 

27  Collins  V.  N.  H.,  171  U.  S.  30. 


CONCERNING    PROPERTY    IN    BUSINESS.  179 

the  State.^"  The  use  of  patented  articles  has  been 
held  by  the  Federal  Supreme  Court  to  be  subject  to 
the  police  power  of  the  States.  Accordingly,  where 
a  law  of  Kentucky  forbade  the  use  of  certain  oil,  it 
was  held  that  the  patentees  of  such  oil  was  subject 
to  the  control  of  the  State  law.^^  Patterson  vs.  Ken- 
tucky, 97  U.  S.,  501.  The  use  of  the  telephone  has 
been  held  subject  to  the  police  power,  and  laws  regu- 
lating prices  have  been  upheld.^^  The  legislature  of 
no  State  (except  New  York,  in  1778)  as  yet  has  fixed 
the  charges  of  innkeepers,  or  of  lawyers;  but,  clearly, 
under  the  decisions,  this  may  be  done;  and  the  State 
Legislature  may  establish  a  tariff  both  for  bonifaces 
and  the  bar.  Indeed,  the  conclusion  seems  to  be  that 
the  protection  we  now  have  with  regard  to  the  right 
of  property  in  business  in  this  country  is  to  be  found 
in  the  constitutional  limitations  upon  the  power  of 
the  State  Legislatures,  as  applied  by  judicial  decis- 
ions to  the  encroachments  of  new  enactments. 

The  latest  monopoly  which  has  been  sustained  is 
that  of  the  Sugar  Trust,^^  where  the  court  held  that 
the  law  of  Congress  commonly  called  the  Sherman 
Anti-Trust  Act,  and  entitled  "An  Act  to  protect 
trade  and  commerce  against  unlawful  restraints  and 
monopolies,"  does  not  forbid  a  combination  formed 
between  manufacturing  companies  for  buying  up 

30  U.  S.  V.  Dougherty,  101  Fed.  32  Central    Union    Telephone 
439.  Case,  118  Ind,  194. 

31  Patterson  v.  Ky.,  97  U.  S.  33  u.  S.  v.  E.  C.  Knight  Co., 
501.  156  U.  S.  1. 


;IgO  CONCERNING    PROPERTY    IN    BUSINESS. 

shares  of  all  competing  companies,  in  order,  by  con- 
trolling the  output  of  the  commodity  which  these 
corporations  manufacture,  to  control  the  market  as 
to  that  commodity  throughout  the  Union.  The  court 
said  that  the  matter  of  manufacture  was  subject  only 
to  the  police  power  of  the  State. 

The  dissenting  opinion  of  Mr.  Justice  Harlan  de- 
clared that  the  Trust  was  a  conspiracy  against  in- 
iterstate  commerce  throughout  the  Union,  and  that 
the  control  of  local  manufacturing  was  simply  a 
means  to  an  end.  Under  this  decision  a  New  Jersey 
corporation  was  able  to  lay  hold  of  every  market  of 
the  United  States  with  respect  to  sugar,  and  we  be- 
'hold  in  this  monopoly  a  general  restraint  of  trade 
which  is  apparently  above  the  power  of  the  govern- 
ment. 

In  perhaps  nine-tenths  of  the  very  numerous  cases 
which  have  gone  from  the  State  courts,  or  from  in- 
ferior Federal  courts,  to  the  Federal  Supreme  Court, 
touching  the  limitations  of  the  Fourteenth  Amend- 
ment upon  the  police  power  of  the  States,  the  high- 
est court,  while  very  pointedly  asserting  its  jurisdic- 
tion to  review,  has  failed  to  actually  recognize  and 
enforce  the  rights  of  the  appellants  to  the  protection 
of  that  amendment.  In  a  recent  case^^  it  was  de- 
clared that  a  highway  might  be  opened  by  the  State 
across  the  right  of  way  of  a  railroad  and  the  whole 
expense  be  thrown  upon  the  railroad.    The  dissent- 

34  C.  B.  &  Q.  R.  R.  V.   Chicago,  166  U.  S.  226. 


CONCERNING    PROPERTY    IN    BUSINESS  181 

ing  judge  cited  several  Michigan  decisions  to  the 
contrary.  In  another  case^^  a  law  of  Connecticut, 
imposing  upon  a  railroad  corporation  the  entire  ex- 
pense of  a  change  of  grade  at  a  highway  crossing, 
was  sustained  as  an  exercise  of  the  police  power  of 
the  State  which  did  not  infringe  the  Fourteenth 
Amendment.  In  the  Income  Tax  case,^^  eminent 
counsel  said  in  argument  that  if  the  tax  twas  not 
sustained  the  people  would  do  away  with  the  court. 
Possibly  such  language  may  have  some  effect. 

A  recent  case^'^  well  illustrates  the  difficulties  at- 
tending the  regulation  of  business  by  the  State.  The 
Legislature  of  the  State  of  New  York  at  its  last  ses- 
sion passed  the  so-called  anti-scalpers'  law,  which 
made  it  a  criminal  act  for  any  person  to  sell  railroad 
tickets  in  the  State  unless  such  person  was  an  au- 
thorized agent  of  the  railroad  companies.  George 
Tyroler,  a  ticket  broker  of  New  York,  was  arrested 
and  convicted  on  the  charge  of  having  sold  a  ticket 
for  transportation  from  that  city  to  Norfolk,  Va.,  not 
being  an  authorized  agent  of  a  railroad  company.  A 
writ  of  mandamus  was  sought  to  compel  the  warden 
of  the  New  York  prison  to  release  him  from  custody. 
The  Appellate  Division  of  the  Supreme  Court  of  the 
First  Department  passed  upon  the  constitutional 
question  raised,  and  unanimously  decided  that  the 


35  N.    Y.    &    N.    E.    R.    R.    V.  36  157  U.  S.  429;    S.  C,  158  U. 

Bristol,  151  U.  S.  556.     See  Chi-  S.  601. 

cago    etc.    R.    R.    v.    Nebraska,  37  Tyroler's  Case,  48  N.  Y.  S. 

170  U.  S.  57,  74.  1093. 


182  CONCERNING    PROPERTY    IN    BUSINESS. 

law  was  constitutional,  holding  that  the  State,  hav- 
ing, as  a  sovereign  power,  the  right  to  grant  fran- 
chises, should  also  have  the  power  to  protect  those 
holding  franchises,  and  refused  to  grant  the  writ. 
An  appeal  was  taken  to  the  Court  of  Appeals,  which 
rendered  a  decision  that  the  law  was  unconstitu- 
tional, and  ordered  Tyroler's  release;  Justices  Bart- 
lett,  Martin  and  Gray  dissenting.  Mr.  Justice  Park- 
er, for  the  majority,  said: 

"This  is  a  remarkable  statute.  The  buying  and 
selling  of  passage  tickets  is  not  abolished;  it  is  only 
condemned  where  the  seller  has  not  authority  from 
some  one  of  the  transportation  companies  to  act  as 
its  agent.  It  is  asserted  that  the  traveling  public 
and  transportation  companies  have  been  defrauded 
by  the  brokers.  It  is  novel  legislation,  indeed,  that 
attempts  to  take  away  from  all  the  people  the  right 
to  conduct  a  given  business,  because  there  are  wrong- 
doers in  it.  The  sale  of  fraudulent  tickets  is  a  pun- 
ishable offense  under  the  penal  code.  This  act,  there- 
fore, must  relate  to  valid  tickets.  The  Legislature  has 
not  the  power  to  interdict  the  sale  of  a  valid  ticket 
by  one  person  to  another  upon  the  pretext  that  fraud 
will  thus  be  prevented.  Because  some  coal  dealers 
and  venders  in  sugar  cheat  in  weight,  and  dealers  in 
paints  and  oils  in  measurements,  it  has  not  been 
thought  proper  to  make  it  a  felony  for  persons  to 
engage  in  such  business,  unless  they  have  been  ap- 
pointed as  agents  by  the  corporations  manufacturing 
such  products." 


CONCERNING   PROPERTY   IN    BUSINESS.  183 

Judge  Martin,  in  his  dissenting  opinion,  says:  "The 
present  statute  cannot  be  held  unconstitutional  with- 
out practically  determining  that  the  affairs  of  this 
State  have  been  controlled  by  statutes  which  were 
invalid,  as  being  in  excess  of  the  powers  of  the  Legis- 
lature to  enact.  To  hold  that  this  act  is  unconstitu- 
tional would  practically  annihilate  the  police  power 
of  the  Legislature." 

Shortly  before  the  above  case  the  N.  Y.  Court  of 
Appeals^^  set  aside  a  law  punishing  the  having  in 
possession  for  sale  articles  of  prison  manufacture,  not 
so  labeled. 

The  court  stood  four  to  three  in  deciding  the  law 
unconstitutional.  Judge  O'Brien  wrote  the  prevail- 
ing opinion,  which  was  concurred  in  by  Judges  Gray, 
Martin  and  Vann.  In  his  opinion  Judge  O'Brien 
says: 

"Hawkins  is  forbidden  by  this  statute  from  buying 
or  selling  or  having  in  his  possession  any  prison- 
made  article,  except  upon  the  condition  that  he  shall 
attach  to  it  a  badge  of  inferiority,  which  diminishes 
the  value  and  impairs  its  selling  qualites.  It  is  not 
claimed  that  there  is  any  difference  in  the  quality 
of  his  scrubbing  brush  when  compared  with  one  of 
the  same  grade  or  character  made  outside  of  the 
prisons.  The  citizen  cannot  be  deprived  of  his  prop- 
erty without  due  process  of  law.  The  principle  em- 
bodied in  this  constitutional  guarantee  is  not  limited 

38  People  V.  Hawkins,  157  N.    Y.  1. 


184  CONCERNING    PROPERTY    IN    BUSINESS. 

to  the  physical  taking  of  property.  Any  law  which 
annihilates  its  value,  restricts  its  use,  or  takes  away 
any  of  its  essential  attributes  comes  within  the  pur- 
view of  this  limitation  upon  legislative  power.  A 
law  which  interferes  with  property  by  depriving  the 
owner  of  the  profitable  and  free  use  of  it,  or  hampers 
him  in  the  application  of  it  for  the  purpose  of  trade 
and  commerce,  or  imposes  conditions  upon  the  right 
to  hold  or  sell  it,  may  seriously  impair  its  value, 
against  which  the  constitution  is  a  protection.  It 
is  entirely  safe  to  assert  that  no  court  has  yet  in- 
voked the  police  power  to  justify  a  statute  the  pur- 
pose of  which  was  to  enhance  the  wages  of  labor  in 
certain  factories  by  suppressing,  through  the  agencies 
of  the  criminal  law,  the  sale  of  competing  products 
made  in  prisons.  If  the  wages  of  labor  in  a  few  fac- 
tories, producing  goods  such  as  are  also  made  in 
prisons,  may  be  regulated  by  the  police  power,  there 
is  no  reason  why  that  power  may  not  be  used  to  regu- 
late the  rewards  of  labor  in  any  other  field  of  human 
exertion.  If  the  police  power  extends  to  the  protec- 
tion of  certain  workmen  in  their  wages  against  the 
competition  of  other  workmen  in  penal  institutions, 
why  not  extend  it  to  other  forms  of  competition? 
Why  not  give  the  workman  who  has  a  large  family 
to  support  some  advantage  over  the  one  who  has  no 
family  at  all?  Why  not  give  to  the  old  and  feeble  a 
helping  hand  by  legislation  against  the  competition 
of  the  young  and  the  strong?  Why  confine  such  leg- 
islation to  scrubbing  brushes  and  other  articles  made 


CONCERNING    PROPERTY    IN    BUSINESS.  185 

in  prisons,  when  multitudes  of  men  engaged  in  farm- 
ing, mercantile  pursuits  and  almost  every  vocation 
in  life,  are  struggling  against  competition? 

"It  would  be  manifestly  unjust  and  inconsistent 
for  the  State,  while  it  encourages  and  commands  the 
employment  of  convicts,  and  becomes  itself  the  pat- 
ron and  customer  of  prison-made  goods  to  prohibit 
its  citizens  from  dealing  in  the  same  property.  This 
State  has  declared  its  policy  to  utilize  convict  labor 
in  the  production  of  such  articles  as  the  government 
itself,  or  that  of  any  political  division  or  the  man- 
agement of  any  public  institution,  may  need.  The 
convict  labor  necessary  to  supply  such  a  large  con- 
sumption must  necessarily  in  some  degree  at  leasit 
affect  the  wages  of  free  labor,  if  the  argument  in  sup- 
port of  this  law  be  correct;  but  the  general  good  over- 
balances any  evil,  real  or  imaginary,  that  may  pro- 
ceed from  that  policy. 

"Some  other  State  may  not  see  fit  to  take  all  the 
profits  of  convict  labor  itself,  but  to  sell  the  products 
in  the  market,  and  when  the  articles  thus  produced 
have  been  absorbed  into  the  general  mass  of  mer- 
chandise, they  cannot  be  made  the  object  of  hostile 
legislation  to  depress  their  value  any  more  than  if 
they  had  been  made  in  private  manufacturing  estab- 
lishments. 

"This  statute  belongs  to  a  class  of  laws  which  have 
become  quite  common  in  recent  years,  all  resting 
largely  upon  the  notion  that  important  problems  in- 
volved in  the  social  and  industrial  life  of  the  people 


186  CONCERNING    PROPERTY    IN    BUSINESS. 

may  be  solved  by  legislation.  This  theory  has,  no 
doubt,  a  certain  fascination  over  some  minds,  but  so 
long  as  legislative  power  is  circumscribed  by  the 
restrictions  of  a  written  constitution,  a  statute  like 
this  cannot  be  sustained  by  the  courts.  Whether 
tested  by  the  Federal  or  State  Constitution,  it  is,  I 
think,  an  invalid  law." 

We  may  now  lay  down  certain  general  conclusions 
as  the  existing  result  of  development  by  the  decisions 
at  the  present  stage. 

1.  The  possession  and  enjoyment  of  all  rights  are 
subject  to  such  reasonable  conditions  as  may  be 
deemed  by  a  legislature  of  a  State  essential  to  the 
safety,  health,  peace,  good  order,  morals  and  conven- 
ience of  the  people  of  the  State. 

2.  The  courts  are  empowered  to  adjudge  whether 
any  particular  law  is  an  invasion  of  the  rights  se- 
cured by  the  constitution,  but  will  strain  a  point  to 
sustain  the  particular  law. 

3.  The  Fourteenth  Amendment,  while  it  author- 
izes the  Federal  courts  to  declare  invalid  State  laws, 
abridging  the  rights  of  citizens  or  denying  due  pro- 
cess of  law,  was  not  intended  to  interfere  with  the 
power  of  the  State  to  protect  the  lives,  liberty  and 
property  of  the  citizens  of  the  States,  and  to  promote 
education,  good  order,  health,  peace  and  morals. 

4.  The  Fourteenth  Amendment  does  not  take 
from  the  State  the  police  powers  which  were  re- 


CONCERNING    PROPERTY    IN    BUSINESS.  187 

served  at  the  time  of  the  adoption  of  the  original 
constitution  and  the  Tenth  Amendment. 

5.  When  property,  either  of  a  corporation  or  of 
an  individual,  or  its  employment,  is  affected  with  a 
public  use,  the  business  in  which  it  is  used  is  subject 
to  the  control  of  the  Legislature  of  the  State  in  all 
respects  which,  in  the  judgment  of  the  Legislature, 
are  necessary  to  protect  the  public  against  danger, 
injustice  and  oppression,  and  the  Legislature  may  fix 
a  charge  for  the  use  of  the  property,  subject  to 
judicial  review,  as  to  reasonableness. 

6.  The  use  of  property  is  distinguished  from  prop- 
erty itself,  and  this  use  is  held  to  be  subject  to  the 
police  power  of  the  State;  and  such  use  may  be  taken 
away  for  the  public  good,  without  compensating  the 
owner;  as  in  the  case  of  Mugler  and  his  brew^ery. 

7.  When  property  is  affected  with  a  public  inter- 
est, charges  for  its  use  may  be  regulated  by  the  State, 
under  the  police  power;  as  in  the  case  of  Munn  and 
his  elevator,  and  in  the  case  of  the  Georgia  company 
and  its  railroad,  subject  to  judicial  revision  as  to  th^^ 
reasonableness  of  the  charges  fixed  by  the  State;  as 
in  the  Minnesota,  Nebraska  and  San  Francisco  cases 
and  the  Reagan  case;  and  the  Federal  Supreme 
Court  will  lean  towards,  not  discovering  or  enforcing, 
any  charter  contract  to  the  contrary.  The  public 
cannot  be  subjected  to  unreasonable  rates  in  order 
that  stockholders  may  earn  dividends;  Covington, 
etc.,  Co.  vs.  Sandford.^ 

1 164  U.  S.  579. 


188  CONCERNING    PROPERTY    IN    BUSINESS. 

8.  The  original  police  power  of  the  State  over  the 
subject  of  charges  for  transportation  has  never  been 
the  subject  of  difference  of  opinion  in  the  United 
States  Supreme  Court.  The  question  differed  about 
has  been  whether,  by  stipulation  in  a  charter, 
amounting  to  a  contract,  that  power  has  been  actu- 
ally surrendered.    Georgia  R.  R.  case  above. 

9.  There  can  be  no  contract  and  no  irrepealable 
legislation  upon  certain  governmental  subjects.  All 
legislative  acts  concerning  public  interests  are  pub- 
lic laws.  Every  succeeding  Legislature  possesses  the 
same  jurisdiction  and  power  as  its  predecessors  with 
respect  to  repeal  and  modification;  and  it  is  vital  to 
the  public  welfare  that  each  Legislature  should  be 
competent  at  all  times  to  do  whatever  varying  cir- 
cumstances and  pressing  exigencies  may  require. 

10.  A  State  regulation  of  railroad  fares,  if  applied 
to  interstate  transportation,  amounts  to  a  regulation 
of  commerce  and  is  void,  even  as  to  that  part  of  the 
transportation  which  is  within  the  State.  Wabash 
vs.  Illinois.^ 

11.  Whatever  is  contrary  to  public  policy  or  in- 
imical to  the  public  interests,  is  subject  to  the  police 
power  of  the  State  and  is  within  legislative  control. 
And,  in  the  exercise  of  such  power,  the  Legislature  is 
vested  with  a  large  discretion,  which,  if  exercised 
bona  fide  for  the  protection  of  the  public,  is  beyond 
the  reach  of  judicial  inquiry.    Louisville  R.  R.  case,^ 

2  118  111.  557.  3  161  U.  S.  677. 


I 


CONCERNING    PROPERTY    IN    BUSINESS.  189 

Great  Northern  case.^  Both  opinions  by  Mr.  Justice 
Brown. 

Finally,  we  remark  that  ninety  per  cent  of  the  leg- 
islation of  the  States  during  the  past  year  was  in  the 
exercise  of  the  police  power,  and  was  in  the  general 
direction  of  the  theories  of  the  populist  against  the 
property-holder;  and  we  repeat  that  reliance  must 
be  had  upon  the  wisdom  and  discretion  of  the  courts, 
supported  by  the  bar,  in  firmly  enforcing  the  consti- 
tutional limitations  upon  the  police  power  of  the 
State. 

The  application  of  fundamental  pricinples  to  new 
enactments  by  judical  decisions  is  rapidly  developing 
a  great  body  of  law  relative  to  the  police  power.  New 
aspects  of  the  subjects  are  constantly  presented,  and 
this  book  might  be  greatly  expanded.  But  general 
principles  have  been,  perhaps,  sufficiently  presented, 
with  an  adequate  number  of  instances  and  de- 
cisions, selected  from  the  great  mass,  in  order  to 
illustrate  the  development  of  case  law. 

*  161  u.  S.  646. 


INDEX. 


ALFRED,  KING;    period  of.  5. 
His  punishment  of  judges,  6. 

AUSTIN,  PROFESSOR;    holds  judiciary  law  better  made  than 

statutory,  16. 
BACON,  LORD;  On  codification,  11. 
BARBER-SHOP;    Closing  on  Sunday,  78,  174. 
BLACKSTONE— 

Distrust  of  legislation,  14. 

On  the  police  power,  23. 
BENTHAM— 

His  hostility  to  judiciary  law,  17. 

Hostility  to  Blackstone  and  Kent,  18. 
BEER  COMPANIES,  85,  90,  99,  124,  148. 

BRIDGES;    State  may  build,  although  indirectly  affecting  inter- 
state commerce,  164,  165,  166. 

Railroad  Companies  may  build  in  navigable  waters,  165. 

Action  of  State  permitting,  on  navigable  waters,  reviewable 
by  courts,  164. 

Congress  may  authorize  against  protest  of  State,  165. 

Authorized  by  state  over  United  States  waters  must  now  be 
approved  by  Secretary  of  War,  166. 
BOYCOTTING,  168. 

Injunctions  against,  168.  , 

BURROWS;    Reporter  of  Mansfield's  decisions,  3. 

On  authority  of  judiciary  law,  3. 
BUSINESS;    regulation  of  by  state,  92,  93,  167. 

Difficulties  of  such  regulation,  171,  173,  181. 
CIVILIZATION— 

Law  a  great  part  of,  1. 
CLASSIFICATION;    Of  subjects  legislated  on  must  be  reasonable 
and  not  arbitrary,  73,  80,  82,  83. 

A  wide  latitude  as  to,  allowed  to  the  states  by  the  federal 
supreme  court,  73. 

Legal  procedure  may  be  different  in  different  parts  of  state,  52. 
COCKBURN,  SIR  A.  J.  E.— 

On  development  of  judiciary  law,  14. 

191 


192  INDEX. 

CODIFICATION;    English  method  of,  is  by  digesting  statutes  re- 
lating to  one  subject,  12,  13,  14. 

Contrary  to  the  racial  disposition  of  the  English  nation,  12. 

Bacon's  plan  of  1592,  11. 

Time  of  Cromwell,  11. 

Commissions  of  1828  and  1844,  12. 

Report  of  body  of  judges  against,  in  1844,  18,  19. 

Bentham  in  favor  of,  18. 
COLERIDGE,  SIR  J.  T.;    Adopted  principles  from  Roman  law,  2.- 

COMMERCE;    Congress  may  consent  to  regulation  of  interstate 

commerce  by  state,  152,  153,  160. 
Federal  power  over,  limits  police  power,  149. 
Exclusively  within  state,  148,  149. 
Rates,  a  part  of  interstate  carriage,  cannot  be  fixed  by  state, 

148. 
State  may  regulate  the  instrumentalities  of,  153,  154,  160. 
This  power  allied  to  state  power  to  tax  such  instrumentalities, 

154 — Examples  of  154. 
State  legislation  affecting  only  indirectly  is  valid,  164. 
Between  ports  of  same  state  may  be  under  federal  control,  157. 
Interstate  conducted  by  foreign  corporation,  143,  157. 
Development  of  relation  between  police  power  and  the  fed- 
eral commerce  power,  158,  159,  160,  161. 
Actual  regulations  of,  although  professedly  police  laws,  are 

void,  149. 
Omission  of  Congress  to  act  on  a  national  subject  equivalent 

to  a  declaration  by  Congress  that  states  shall  not  legislate 

upon  it,  161. 

CONSTITUTIONS,  WRITTEN;  an  American  invention,  19. 

CONTRACTS;    Parliament  can  absolve  from,  20,  21. 

States  prevented  by  federal  constitution  from  exercising  that 

power,  21. 
Limitations  on  police  power  respecting  freedom  of,  53  to  71. 
Between  employer  and  employee,  54  to  64. 
Laborer  may  contract  for  labor  as  freely  as  employer  may 

contract  for  iron  or  coal,  64. 
For  payment  in  gold,  sustained,  68. 
Statutes  regulating  workingmen's  contracts,  55,  59. 
Insurance  contracts,  69. 

Evolution  of  the  law  concerning  freedom  of,  69. 
As  to  prices  and  wages,  67,  70,  116. 
Examples  of  impairment  of  obligation  of,  128  to  133. 
Of  municipalities  with  street  railway,  140. 


INDEX.  193 

CONTRACTS— Continued. 

Trend  of  decisions  against  restraint  of  exercise  of  right  of 
contract,  53,  54,  66,  71. 

Licenses  are  not,  92. 

Corporate  charters  so  held,  104. 

Of  exemption  from  taxation,  105,  121,  122,  131. 

Private,  within  state,  if  directly  affecting  interstate  commerce, 
are  subject  to  federal  control,  174. 

Meaning  of  term,  122. 

By  state,  regarding  health  and  morals,  may  he  modified  or 
abrogated,  98,  124,  125. 

Can  be  no  legislative  contract  as  to  certain  governmental  in- 
terests,  135. 

R.  R.  Co.  may  contract  for  certain  exemptions  from  lia- 
bility, 53. 

CORPORATIONS;    Increase  in  number  of,  137. 

State  control  same  as  over  natural  persons,  101. 

Created  under  articles  of  association,  101,  102. 

How  construed;    boards  of  control  of,  102,  103. 

Charter  falls  within  meaning  of  term,  "contract,"  104. 

Police  power  over  transportation,  rates  of,  106. 

Courts  may  pass  upon  reasonableness  of,  109,  110,  113,  155,  156. 

Recent  aflBrmances  of  that  doctrine,  109,  153,  155,  156. 

Water  and  warehouse  monopolies  controlled  as  to  charges, 

112,  113. 
Control  of  grain,  cotton,  tobacco  and  telephones,  114,  115. 
Charter  treated  as  a  legislative  act,  120. 
Implications  in  charter  of,  127,  128. 
Strict  construction  of  charters,  102,  103,  135. 
Many  instances  of  application  of  "charter  contract"  doctrine, 

128  to  133. 
Power  of  legislature  to  make  contracts,  134. 
Liberality  of  construction  of  reservation  clauses,  135,  136. 
May  be  authorized  to  take  franchises  and  property  of  another 

corporation,  on  payment,  136,  139. 
Representation  of  minority  stockholders  on  board,  137,  138. 
Corporate  business,  affected  with  a  public  interest,  subjected 

to  legislative  control,  106,  111,  178. 
Franchises  of,  not  inviolable  at  common  law,  141. 
Control  of  by  state  must  be  in  good  faith,  142. 
State  may  inspect  internal  affairs  of,  103,  104,  142. 
State  may  prescribe  conditions  against  foreign  corporations 

which  are  not  engaged  in  interstate  commerce,  143. 
Public  duties  of  transportation  companies  may  be  enforced  by 

mandamus,  144. 


194  '  INDEX. 

CORPORATIONS— Continued. 

Foreign,  conducting  interstate  commerce,  although  subject  to 
state  regulation,  are  under  federal  control,  157. 
COTTON;    State  control  of  transportation  of,  114. 
CRIME;    Punishment  of  by  hard  labor,  51. 

Punishment  of  by  electricity,  39. 

Creation  of  new  crimes,  46. 
CROMWELL;    On  codification,  11. 

CROWN;    Power  of,  devolved  upon  the  people  of  the  states,  20. 
DEVELOPMENT  OP  LAW,  7  to  14. 

By  judicial  decision,  7,  8,  9,  13, 

By  juristic  writings,  8. 

By  professional  opinion,  8,  9. 

By  legislative  enactment,  10. 

By  newly  devised  proceedings,  38. 

Progress  from  1300  to  1875,  35. 

Lord  Esher  on,  3. 

Ch.  J.  Cockburn  on,  14. 
DUE  PROCESS;    Created  by  the  law  of  the  state,  37. 

Legislature  may  change,  provided  fundamental  principles  are 
followed,  37. 

Does  not  necessitate  a  jury  in  a  variety  of  cases,  37,  38. 

In  cases  of  taxation,  what  is,  42. 

Certain  statutes  denying,  66,  67,  68. 

Principles  of,  not  limited  to  physical  taking  of  property,  184. 

Conditions  upon  use  of  property  may  be  held  to  deny,  184. 
EAST  INDIA  COMPANY,  141. 
EDUCATION— 

A  matter  wholly  belonging  to  the  state,  79. 

Boards  of,  may  classify  as  to,  79. 
EGYPT;    Community  of  land  in,  31. 
ELEVATORS;    Charges  may  be  controlled  by  state.  111,  178. 

Although  private  property,  and  not  corporate.  111,  178. 
EMPLOYER,  EMPLOYEE;    Contracts  between,  53  to  56. 

Employer  cannot  be  prevented  by  statute  frbm  keeping  supply 
stores  for  employees,  78. 

Laws  restricting  employment  in  public  works  to  citizens,  sus- 
tained, 79,  80. 

Statutes  repealing  co-servant  rule  sustained,  81,  82. 

Suits  to  recover  wages,  83,  84. 
EQUAL  PROTECTION;    Discussion  of,  71  to  85. 

Not  denied  when  statute  operating  alike  on  all  persons  and 
property  similarly  situated,  80,  81. 


INDEX.  195 

EQUITY— 

A  part  of  the  common  law,  46. 
Evolution  of  equity  practice,  45. 

Process  of  injunction  to  administer  police  power,  43,  44,  168. 
ESHER,  LORD;    On  nature  of  English  law,  3. 
FEDERAL  COURTS;    Authorized  to  set  aside  state  laws  and  de- 
cisions abridging  individual  rights  or  denying  due  process, 
21,  22. 
Supreme,  as  to  public  policy  concerning  freedom  of  contract, 

53. 
Conflict  between  New  York  courts  and,  53  n.  7,  177. 
Conflict  between  Colorado  courts  and,  65. 
Conflict  between  Indiana  courts  and,  140  n.  6. 
The  depository  of  the  power  to  determine  reasonableness  of 
R.  R.  rates,  155,  156. 
FEDERAL    GOVERNMENT;     Foundation    of    implied    powers 

of,  20. 
FERRIES;   Whether  state  may  authorize  between  states,  164. 

State  may  not  tax  business  of  interstate,  155. 
FOOD;    Sale  of  regulated,  93. 

May  be  sold  with  a  free  premium,  177,  178. 
FRANCHISES;    At  common  law  not  held  as  private  property,  but 
as  political  privileges,  142. 
Right  to  collect  rates  is  property,  126. 
In  America,  are  property,  and  taxable,  139,  146. 
Not  higher  in  class,  or  more  sacred,  than  other  property,  146. 
Not  limited  in  duration  to  life  of  corporation  holding,  140,  141. 

FREEDOM  OF  CONTRACT— 

Limitations  on  the  police  power  respecting,  53,  71. 

GAS  COMPANIES— 

Charter  contracts  with  upheld,  132. 

GAS  TRUSTS,  173. 

GENERAL  CONCLUSIONS;     Existing  result  of  development  at 

the  present  stage,  186-189. 
GRAIN  ELEVATORS;    Charges  of  regulated  by  state,  111,  113. 
HALE,  LORD;    On  codification,  11. 
HARBORS;    River  and  Harbor  Act  of  Congress  of  1890,  166. 

State  may  establish  harbor  lines  not  inconsistent  with  federal 

legislation,  166. 

HEALTH,  THE  PUBLIC,  85-101. 

Eight-hour  law  sustainable  as  a  regulation  of,  64. 


a96 


INDEX. 


HEALTH— Continued. 

Michigan  Sunday  law  against  barber-shops  sustained  as  a 
health  regulation,  78. 

Similar  statute  of  Illinois  held  to  deny  equal  protection,  78. 

Similar  statute  of  Minnesota  sustained  by  Fed.  S.  C,  78. 

Regulations  as  to  are  especially  within  the  police  power,  85. 

Private  property  cannot  be  taken  for  the  purposes  of,  without 
compensation,  86. 

Infectious  animals  or  articles  may  be  excluded,  except  when 
this  rule  impinges  on  the  federal  power  to  regulate  com- 
merce, 86. 

Internal,  state  regulations  of,  beyond  control  of  Congress,  87. 

Market  houses,  and  power  of  city  council  over  them,  87,  88. 

Plenary  power  of  city  as  to,  92,  94. 

Instances  of  regulations,  89,  91,  92. 

Boards  of  health  may  be  held  liable  for  infringing  private 
rights,  89.  90. 

Legislative  discretion  as  to,  must  be  reasonable,  91. 

Judicial  tribunals  may  apply  this  test,  91. 

Regulations  as  to  unwholesome  food,  93. 

Cannot  colorably  affect  rights  and  callings,  94. 

Explosive  substances,  insecure  buildings,  etc.,  95,  99. 

No  legislature  can  bargain  away  power  over  liquor  trade,  100. 

Dam  obstructing  interstate  commerce,  but  built  with  the  ob- 
ject of  protecting  public  health,  lawful,  150. 
IMPAIRMENT  OF  CONTRACTS— 

By  state  laws,  examples  of,  128-132. 
INHERITANCE  TAXES;    Progressive,  are  sustainable,  74. 
INJUNCTION— 

Writ  of  employed  to  protect  business  against  strikes,  43,  44, 
168. 
INSPECTION  LAWS;    Sustained,  as  to  imports  into  state,  159. 
INSURANCE  COMPANIES;    Classification  as  to,  74. 

Business  of,  not  commerce,  143. 
JESSEL,  SIR  GEORGE;    On  development  of  equity  procedure,  45. 

On  public  policy  as  to  liberty  of  contract,  53. 
JUDGES;    Function  of,  1-4. 

Duty  of,  3. 

Legislation  by,  5-14. 

Legislation  by,  advantages  of,  14. 

Adapt  law  to  varying  conditions  of  society,  14. 

Sir  A.  J.  E.  Cockburn  on, 14. 
JURY;    Derived  from  Roman  law,  5. 

Civil  trials  may  be  without,  38. 


INDEX.  197 

JURY— Continued. 

Grand,  indispensable  in  federal  courts,  but  not  in  state,  38,  39. 

Number  of  may  be  changed  by  state  legislation,  39. 

Also  number  necessary  to  a  verdict,  39. 
KENT,  CHANCELLOR— 

Criticised  by  Bentham,  18. 

Devotes  little  attention  to  the  police  power,  24. 
LABOR  LEGISLATION,  30,  31,  53-59. 

Eight  hour  laws,  59,  65,  68. 

Test  of  such  legislation,  63. 

Store-order  acts,  55,  64. 

Legislative  tutelage  of  laborer  not  upheld,  64,  65. 

Organizations  to  prevent  competition,  67. 

Regulation  of  workingmen's  contracts,  68. 

Injunctions  against  strikes,  43,  44,  168. 

Labor  legislation  ineffective,  183-186. 
LAND;    Nationalization  of,  31,  32. 
LAW  OF  ENGLAND;    Not  a  science,  3. 

Principles  of  reason  and  principles  of  custom,  5. 

Modern,  began  with  Elizabeth,  6. 

Modern,  characteristics  of,  6. 

When  first  in  print,  6,  7. 

Evolution  of  equity  practice,  45. 

Newly-devised  legal  proceedings,  38. 

Concerning  prices  and  wages,  70. 

English  statutes  as  to  industrial  combinations  repealed  in 
1844,  173. 

Concerning  corporate  franchises  and  the  English  universities, 
141. 
LAW  OF  THE  LAND;   This  phrase  means  the  law  of  the  state,  37. 
LAW  REFORM,  19. 

LAUNDRIES;    Regulated  for  the  public  health,  81,  92,  174. 
LEGISLATURES;    Modern  distrust  of,  14,  15. 

Have  power  to  change  entire  body  of  law  of  state,  150. 

Punishing  employment  of  unnaturalized  persons,  79,  80. 

Punishing  railroads  for  stock  killing,  74,  75. 

Ineffective  to  solve  social  and  industrial  problems,  185,  186. 

Ninety  per  cent  of  legislation  at  present  is  under  the  police 
power,  189. 

Cannot  dispossess  themselves  of  the  right  to  exercise  the  po- 
lice power  (see  title  "Statutes"),  58,  88,  135. 
LIBEL  SUITS;    Damages  in,  cannot  be  fixed  by  statute,  78,  79. 
LIBERTY;    Rights  Included  in  the  term,  66,  167,  168. 


198  INDEX. 

LIBERTY— Continued. 

Right  to  choose  a  calling,  part  of,  168,  177. 
LICENSES;    Cannot  be  excessive,  95. 
Instances  of^  91. 

May  be  different  as  to  residents  and  non-residents,  79. 
Are  not  contracts,  92. 
As  to  peddling,  etc.,  94. 
LIQUORS;   Regulation  and  sale  of  strictly  under  the  police  power, 
67,  85. 
Manufacture  and  sale  of,  state  may  control  or  prohibit,  85, 

99,  100,  161,  162. 
Federal  Supreme  Court  on,  concerning  commerce,  160,  161, 

162. 
Compensation  not  allowed  when  private  property,  previously 
used  lawfully  for  liquor  trade,  is  injured  by  such  regulation, 
175. 
New  York  court,  contra,  on  this  point,  176. 
LOTTERY  COMPANIES;    Charter  may  be  amended  without  their 

consent,  124. 
MAY,  SIR  ERSKINE;    Constitutional  History,  15. 
On  legislative  jobbery,  15. 
On  legislative  protection  of  the  weak,  30. 
MONOPOLIES;     168-172,  179,  180. 

In  form  of  trusts,  173,  174. 
MUNICIPALITIES;    Law  concerning,  of  Roman  origin,  5. 
Powers  of,  as  to  public  health,  87,  88. 
Cannot  disable  themselves  from  providing  for,  88. 
Sewers  and  waterworks  are  the  private  property  of,  in  which 

the  state  is  not  interested,  as  in  streets,  88. 
Cannot  grant  franchises  unless  authorized  by  state,  88. 
Cannot  part  with  legislative  function,  87,  88. 
Implied  powers  of,  144. 

Power  to  fix  fares  must  be  expressly  conferred,  140. 
Power  in,  to  grant  an  exclusive  privilege,  must  be  explicitly 

conferred,  140. 
Legislature  may  regulate  fares  previously  fixed  by,  140. 
Conflict  between  state  and  federal  courts  on  this  doctrine,  140. 
NATURALIZATION— 

Employment  of  unnaturalized  person,  80. 
NUISANCES;    Abating  of,  by  equity  process,  49,  50. 

May  be  declared  such  by  legislature,  or  by  municipalities,  and 

their  discretion  decisive,  90. 
Unless  where  ur.reasonably  exercised,  91,  92. 
Suppression  of,  98. 


INDEX.  199 

NEGRO  RACE— 

Discrimination  as  to  voting,  84. 
Discrimination  as  to  education,  79. 
Discrimination  as  to  R.  R.  cars,  79, 151. 
OLEOMARGARINE;    Legislation  concerning,  178. 
Generally  sustained,  178. 
Power  doubted  in  Michigan,  178. 

Federal  regulation  of  sale  of,  for  purposes  of  taxation,  179. 
ORDINANCES;     Of  city,   requiring  abutting  owners  to  remove 
snow  from  sidewalks,  not  warranted  by  police  power,  73. 
Cannot  fix   car-fares  unless  by  express  authority  from  the 

legislature,  140. 
Must  be  general  and  not  discriminating,  89. 
May  confer  privileges  enduring  beyond  corporate  existence  of 
conferee,  140. 
OIL;    Illuminating,  26,  62,  65,  127. 
Oil  Trusts,  124. 

PARLIAMENT;    Transcendent  powers  of,  devolved  upon  the  peo- 
ple of  the  states,  20. 
But  not  conferred  on  the  legislatures,  21. 

PEEL,  SIR  ROBERT;    On  protection  of  the  weak,  30, 

POLICE  POWER;    Phrase  essentially  modern,  23. 
Derivation  of  the  term,  23. 
Blackstone  and  Bentham  on,  23,  24. 
Few  decisions  before  last  half-century,  25. 
Description  of,  by  various  eminent  judges,  26,  27. 
Extent  and  limitations  of,  how  ascertained,  25,  26, 
Incapable  of  exact  definition,  25. 

Sometimes  used  as  the  equivalent  of  legislative  power,  27. 
Generally  applied  to  governmental  control  over  persons  and 

property,  as  respects  social  and  public  order,  life,  health 

and  business,  25,  27,  98,  99,  100. 
Enumeration  of  subjects  on  which  it  has  been  exercised,  28, 

29,  30,  31,  98-100. 
Constitutional  limitations  to  its  exercise  are  applied  by  the 

judges,  27. 
Exercise  of  the  power  for  protection  of  the  weak,  30. 
Recent  exercise  of,  in  labor  legislation,  31. 
Decisions  of  federal  supreme  court  concerning,  numerous,  22, 

32. 
Exercise  of,  recently  extended  by  the  decisions  to  the  public 

convenience,  35. 
Exercised  in  the  administration  of  justice,  37-52. 


200 


INDEX. 


POLICE  POWER—Continued. 

When  defence  depends  on  federal  law,  40,  41,  42. 

As  to  criminal  conspiracies,  42,  43. 

By  equity  process,  in  suppression  of  crime,  43,  44. 

Remarkable  development  concerning  this  process  in  recent 

cases,  especially  federal,  44,  45,  168. 
Evolution  of  equity  practice,  45. 
How  far  acts  may  be  declared  criminal,  46. 
Contempt  proceedings  may  be  regulated,  48. 
Practices  indulged  in  under  religious  belief,  punishable,  48,  49, 

50,  51. 
Abating  of  nuisances  by  equity  process,  49. 
Punishment  by  electrical  apparatus,  39. 
Punishment  by  hard  labor,  51. 
Criminal  procedure  may  be  different  in  different  parts  of  the 

state,  51,  52. 
Concerning  freedom  of  contract,  53-71. 
Legislature  cannot  dispossess  itself  of  the  right  to  exercise, 

58,  100,  123,  124,  135. 
Nor  can  municipalities  part  with  the  legislative  function,  87, 

88. 
Limitation  of  police  power  by  the  constitutional  obligation  of 

equal  protection,  72-85. 
Distinction  between,  and  taxing  power,  73,  74. 
When  violates  principle  of  equal  classification,  74-78. 
Concerning  public  health,  85-101. 
Commerce  which  concerns  more  states  than  one,  not  within, 

149. 
But  state  control  sustained  which  only  affects  interstate  com- 
merce indirectly,  150,  164,  174. 
Examples  of  statutes  sustained,  and  the  contrary,  150-156. 
Touching  water-ways,  164-167. 
Existing  result  of  development  of  law  concerning  police  power 

by  decisions,  186. 
Eleven  propositions  deduced  from  the  decisions,  186-189. 
Ninety  per  cent  of  all  legislation,  at  present,  is  in  the  exercise 

of,  189. 

PROFESSIONS;    How  may  be  regulated,  80. 

PROPERTY;    Legislature  may  prescribe  how  may  be  used,  114. 
Especially  when  affected  with  a  public  writ,  106,  111,  112. 
In  business,  167-186. 

QUARANTINE;    Laws  of  state  upheld,  although  obstructing  in- 
terstate commerce,  150. 


INDEX.  201 

RAILROADS;    Legislature  may  impose  liabilities  on,  for  injury 
or  death,  not  imposed  on  other  persons  or  corporations,  56. 

Interchangeable  mileage  tickets,  58. 

Statute  concerning  "family-tickets"  void,  78. 

Void  statutes  as  to  stock-killing,  74,  75. 

Cannot  be  compelled  to  pay  attorney  fees  on  unsuccessful 
appeals,  or  in  damage  cases  unsuccessfully  defended,  76,  77. 

Equal  accommodations  on,  for  negro  race,  79. 

Officers  of,  cannot  be  punished  for  not  paying  for  stock  killed, 
81. 

Are  persons  within  14th  Amendment,  83. 

Method  of  assessing  may  be  different  from  that  of  assessing 
other  property,  83. 

State  may  prescribe  qualifications  of  employees  of;   instances, 
93. 

Regulation  of  crossings,  bridges,  etc.,  96,  97. 

Regulations  as  to  safety  of  passengers,  trainmen,  etc.,  96,  97. 

Contracts,  as  to  rates,  by  state,  126,  140. 

State  Commissions,  as  to,  97. 

Federal  court,  the  depository  of  the  power  to  determine  rea- 
sonableness of  R.  R.  rates,  156. 

Instances  of  regulation,  97. 

Reasonableness  of  regulation  strictly  a  judicial  question,  96, 
107. 

Public  duties  of,  enforced  by  mandamus,  144,  145. 

Laws  authorizing  bridging  navigable  waters,  157,  165. 

Whole  expense  of  change  of  grade,  at  crossing  of  highways, 
may  be  laid  upon,  180,  181. 

Highway  may  be  opened  across,  and  entire  expense  imposed 
upon,  under  police  power,  180,  181. 

Michigan  decisions,  contra,  181. 

Persons,  not  authorized  agents  of,  may  sell  transportation  on, 
181,  183. 

Where  state  power  of  regulation  of  does  not  amount  to  regu- 
lation of  commerce,  162. 

When  may  contract  for  exemption  from  liability  for  negli- 
gence of  employee,  53. 
RELIGIOUS  BELIEF;    No  justification  of  criminal  acts,  48. 

Constitutional  provisions  as  to,  49. 
RELIGIOUS  PRACTICES;    Causing  disturbances,  under  state  con- 
trol, 50,  51. 
RESIDENTS;    Cannot  be  preferred  to  non-residents  in  certain 
particulars,  80. 

Statutes  restricting  trusteeships  to,  void,  82,  83. 


302  INDEX. 

RIVERS;   (See  Waterways.) 

ROMAN  LAW.  4. 

Influence  on  English  law,  5. 

Principles  adopted  from,  5. 

Jury  system  derived  from,  5. 

Maxims  adopted  from,  7. 
RUSSIA;    Community  of  land  in,  31,  32. 
SLAUGHTER  COMPANIES,  170. 

STATE;  Entire  body  of  law  within,  is  subject  to  change,  at  the 
will  of  state  legislature,  except  as  restricted  by  the  federal 
constitution  (or  that  of  the  state),  150,  151. 

State  laws,  affecting  interstate  commerce,  generally  sustained, 
if  their  real  purpose  is  not  to  regulate  commerce,  150,  164. 

State  laws,  rules  of  decision,  in  federal  courts,  119. 

Ninety  per  cent  of  state  legislation,  at  present,  is  in  the  exer- 
cise of  police  power,  189. 
STATUTES;    Codification  by,  10,  11. 

"Of  Laboi-ers,"  5  Eliz.,  ch.  4,  11. 

English  Railway  Traffic  Act  of  1852,  12. 

English  Act  concerning  bills  and  notes,  1882,  13. 
Of  frauds,  15,  16. 

Prof.  Austin  on,  16. 

Bishop  Hoadly  on  interpretation  of,  16. 

Cannot  supersede  judiciary  law,  because  judges  must  con- 
strue and  apply  the  statutes,  20. 

Compelling  payment  in  full  for  unperformed  contracts,  void, 
53,  54. 

English  "Truck  Act."  1  &  2  Wm.  IV.  ch.  37,  55. 

Forbidding  certain  contracts  to  accept  wages  in  something 
other  than  money,  and  fixing  times  of  payment,  not  sus- 
tained, 56. 

Forbidding  sales  to  workmen  at  greater  profit  than  to  others, 
void,  55,  68. 

Forbidding  employment  of  women,  and  children  under  18, 
more  than  ten  hours  a  day,  sustained,  55. 

Forbidding  certain  methods  of  paying  wages,  void,  56. 

Examples  of  statutes  sustained,  or  set  aside,  56,  57,  58. 

Penn.  "Store-order  Act"  of  1881,  64. 

Federal,  regarding  seamen,  65. 

Illinois  "Anti-Trust  Law"  of  1891,  173. 

Texas  "Anti-Trust  Law"  of  1889,  173. 

Repeal  of  similar  English  laws  in  1844,  173. 

Denying  equal  protection,  72-85. 


INDEX.  203 

STATUTES— Continued. 

Repealing  co-servant  rule,  sustained,  and  liberally  construed, 
81,  82. 

"Anti-Department  Store  Law"  of  Missouri,  void,  82. 

Exception  to  rule  that  construction  of  state  statute  by  state 
court  is  binding  on  federal  courts,  120. 

Mass.  statute  of  1831,  reserving  right  of  repeal  of  corporate 
charters,  136. 

Illinois  statute,  forbidding  same  rate  for  long  and  short  hauls, 
148. 

U.  S.  River  and  Harbor  Act  of  1890,  166. 

Conn,  law  as  to  change  of  grade  of  railroad  at  highway  cross- 
ing, 181. 

N.  Y.  "Anti-R.  R.  Ticket  Scalpers  Law,"  181-183. 

N.  Y.  law  punishing  sale  of  prison-made  articles,  not  so  la- 
beled, 183. 

STRIKES;    May  be  enjoined,  44,  168. 

SUNDAY  LAWS;    As  to  barber-shops,  78,  174. 

Against  carrying  freight  on  interstate  railroad  on  Sunday, 
sustained,  151. 

STREET  RAILWAYS;    Municipal  contracts  with,  140. 

Fixing  of  fares  for,  by  municipality,  and  legislature,  140. 

TAXATION;    Of  railroads,  by  state  board,  in  a  way  different  from 
other  property,  sustainable,  83. 
Legislative  contracts  of  exemption  from,  105,  121,  122,  131. 
Power  of  exemption  may  finally  be  denied,  122. 
State  taxation  of  instrumentalities  of  commerce,  154, 
Instances  of,  154,  155. 

TELEGRAPH:  State  laws  regulating  delivery  of  messages  by 
interstate  telegraph  company  encroach  on  power  vested  in 
Congress,  152. 

May  be  required  to  place  wires  under  ground,  162,  163. 

Interstate  may  be  regulated  by  local  law  in  cities,  162,  163. 

TELEPHONES;  Rates  of  may  be  controlled  by  state,  114,  115, 
179. 

TOBACCO;  Charges  of  warehouses,  controlled  by  state,  114. 

Cigars  may  be  made  in  tenement  houses,  and  N.  Y.  law  for- 
bidding, void,  176,  177. 

TRADE;    In  grain,  flour,  cattle,  labor,  etc.,  formerly  regulated  by 
statute  in  England,  70. 
Tendency  here  to  return  to  that  abandoned  policy,  70,  71. 


304  INDEX. 

TRADES  UNIONS— 

Enjoined  for  protection  of  business  or  property,  43,  44,  168. 
TRUSTS;    State  anti-trust  laws,  173. 

English  legislation  against  repealed,  173. 
Pipe  and  Steel  and  Stock-yards  cases,  174. 
UNIVERSITIES;     Corporate   bodies  of  the  two  universities,  in 

England,  subject  to  parliamentary  control,  141. 
UNITED  STATES  GOVERNMENT;    Jurisdiction  of,  within  the 

states,  157,  158. 
WAGES;    Statutes  against  paying  in  paper  which  is  not  redeem- 
able in  lawful  money,  void,  54,  55,  56. 
Ancient  statutory  regulation  of,  in  England,  70, 
Suits  to  recover,  may  be  regulated,  83,  84. 
WATERWAYS;    State  may  authorize  bridges  and  dams,  although 
interstate  commerce  may  be  indirectly  affected,  150,  164,  165. 
Harbor  lines  may  be  fixed  by  state,  when,  166. 
WATER;    Regulation  of  price  of,  112. 

Water  works,  charter  contract  with,  upheld,  132,  133. 
YEAR-BOOKS;    Contain  much  of  our  received  law;    examples, 
6,  7. 


LAW  LIBRARY 

OF 

LOS  ANGELES  COUNTY 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNU 

LOS  ANGELES 


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